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Court Tackles Obstacles To Tort Suits

Justices wade through immunities and statutory impediments that restrict causes of action

By Ronald Grayzel

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The New Jersey Supreme Court established its nationwide reputation by blazing new trails in tort law. This term, the Justices expended their time and energies at the other end of the spectrum dealing with immunities and statutory impediments that restrict causes of action. The Court expanded parental immunity and constructed a new exemption for liability for defendants with mental disease. Instead of exploring the frontier of tort law, the High Court trudged through the statutory obstacles to lawsuits contained in the Affidavit of Merit Statute and Title 59.

This is the new bleak reality in the world of tort where the Legislature and Congress are preoccupied with cutting back on the public’s access to the courts at the behest of special interests. The New Jersey appellate courts have made reasonable attempts to soften the harsh edges of this legislation but have not intervened to stop it. Our Highest Court refused this term to uphold lower courts that found a statutory restriction on bringing pain and suffering lawsuits in automobile accidents to be unconstitutional.

As the number of filings in civil cases decline markedly, the trial bar is watching the tort world shrink. Armageddon takes place next term when Justices will be called upon to review the appellate line of cases that rewrote AICRA to restrict claims for pain and suffering in automobile cases.

One exception to this trend has been the rapid growth in legal malpractice litigation. The Court continued the expanded legal responsibility of lawyers by dispensing with the “case within a case” format, but it did finally draw some boundaries on the application of the discovery doctrine to the six-year statute of limitations.

The Court also handled some standard fare involving burdens of proof and evidentiary issues in medical malpractice cases, the scope of permissible expert testimony in toxic tort cases and the scope of UIM coverage.

Justices Long and Albin continue their leadership in tort law. Justice LaVecchia continues to function as a moderate counterweight to her more liberal colleagues by authoring dissents when she objects to the reach of the majority opinions. Justice Wallace published his first tort opinion and a new Justice takes the bench next term.

Voir Dire

Trial lawyers believe that voir dire is the most important part of trial. The tort system has become a lightening rod in the cauldron of partisan politics. “Frivolous litigation” and “corporate greed” are slogans used by opposing camps in the political arena trying to advance their agendas. Many prospective jurors come to court with rigid, preconceived notions about the cases they are going to decide.

The questioning of potential jurors in civil cases is done exclusively by judges. Lawyers used to conduct voir dire in New Jersey. The system was changed because the inner sanctum believed lawyers were work-shopping their cases during the selection process. Having judges ask the panel simple, straightforward questions was deemed to be adequate to assess whether a juror could be fair and impartial. At the time this change was made, the public held its courts in higher esteem and the justice system was not grist for ideologues.

Trial judges generally ask nondescript questions that elicit very little information and are primarily designed to impanel a jury as quickly as possible. Lawyers know nothing about the jurors who will decide their client’s fate. Many judges assume members of the panel are fair and believe that asking pointed questions is a waste of time and resources. In today’s world, this cavalier approach poses a significant risk of impairing the litigant’s right to a fair trial. There are judges who use the questions submitted by lawyers and work hard at identifying prospective jurors who may be biased. Diligent judges bring panel members to side bar to pursue aggressive follow-up of questionable answers. These jurists are the exception, not the rule.

Lawyers experienced in working with focus groups where participants are questioned vigorously about their attitudes and biases are acutely aware of the pitfalls of seating jurors blindly without attempting to find out their propensities to prejudge the case. The small numbers of judges who allow lawyers to question panel members directly have good experience with the process. When conducting voir dire in complex litigation, innovative courts, with the assistance of counsel, have used written questionnaires and individual interviews that identify prospective jurors who harbor prejudice against the parties or the system. This information would never come to light with the standard practice. Lawyers should be directly involved in the process because they have the casespecific knowledge to ask the necessary questions to unearth deadly prejudice in prospective decision makers. As advocates, lawyers can handle the hard questions that judges are loath to ask. Voir dire must be conducted carefully if the parties are going to get a fair trial. Trial lawyers have pressed for reform of the system to no avail.

In the face of this crisis, there are currently efforts underway to curtail voir dire by reducing the number of peremptory challenges to three and using standardized, homogenized questions for jurors. The Best Practice brigade is about to swarm into the courtroom.

A comprehensive examination of voir dire was conducted by the Justices of the New Jersey Supreme Court in State v. Fortin, 178 N.J. 540 (2004). Although this is a criminal case, it contains prescriptions for the problem that are instructive for the civil justice system. Trial lawyers looking for ammunition to obtain real reform should read this opinion. The defendant was being tried for capital murder and the evidence against him included his prior sexual assault on a female police officer. The sordid tale of the other crime was so damning that the defense believed it would foreclose a fair trial.

The defense submitted a detailed, multiparagraph question to the trial judge to ask prospective jurors if the other crime evidence would unfairly prejudice them against the defendant. Defense counsel requested on three separate occasions that the judge ask each member of the panel “whether that evidence would impair their ability to remain fair and impartial and abide by the court’s instruction on the limited use to be given to that evidence.” Holding a winning hand, the prosecutor did not object.

The trial judge refused to ask the defense counsel’s question on grounds that case law called for “an expedient selection of a fair and impartial jury” and disapproved of using questions that reflect a “party’s favorable spin to a party’s preferred view of legal principles and the facts.” The judge refused to change his mind even after a couple of potential jurors were excused because they had read about the other crime in the media and believed this would prejudice them in this case.

The judge adamantly refused to confront the issue of the prejudicial impact of the other crime evidence during voir dire because he felt it should be addressed only by giving cautionary instructions at the time the evidence was proffered. Once the jury was empanelled, the prosecutor gave a powerful opening statement laying out the details of the other crime. It was only then that the court made reference to the evidence and gave a limiting instruction. The problem was that the court had not done an assessment of whether the admonition would be effective.

In a powerful opinion, Justice Albin, the High Court’s former barrister, extolled the virtues of intensive voir dire and instructed trial courts to exercise care in conducting it. This is powerful precedent for the trial bar’s efforts to broaden and strengthen the process.

The Justices stated categorically that the Court’s prior decisions should not be interpreted to “limit voir dire to the bare minimum.” It is obligatory that a panel be questioned to determine if potentially inflammatory evidence in a case can prevent rational deliberations about the defendant’s fate:
Reason and experience tell us that prospective jurors have varying thresholds for processing and reacting to evidence ... Some jurors, will be so disturbed or repulsed by the gruesome details of a crime that they will lose their ability to be objective and will be incapable of dispassionate consideration of the evidence ... Our courts must not be fearful of asking those questions out of concern that jury selection will be protracted.

The jurists clearly understood the importance of voir dire in ensuring a fair trial even if it requires the expenditure of valuable time and resources:
Experience can never trump the considered and thoughtful selection of jurors whose impartiality and fairness must be beyond reproach. The extra time necessary to impanel twelve dispassionate jurors in this case would have been a small price to pay for the assurance of a fair trial.

The remedy for the trial court’s failure to explore this issue completely during voir dire was a new trial.

In the era of talk radio, cable news and Court TV, the need to conduct careful questioning of jurors deciding personal injury cases, medical malpractice claims and products liability cases against multinational corporations is greater than ever. There are far too many dogmatic people that are ready to make their decisions without bothering to listen to the evidence or follow the charge on the law. It takes vigorous questioning and follow-up to detect people with these attitudes. Experience teaches us that every single one of these prospective jurors will tell the inquiring judge that they can be fair. Judges have to be prepared to follow up on responses that reflect possible bias by a member of the panel. Trial lawyers should be given the opportunity to do the follow-up or ask case specific questions. This is not a time to reduce the number of peremptory challenges. Voir dire cannot be effective if it is reduced to the delivery of perfunctory questions streamlined to fit into the appendix to the New Jersey Court Rules next to the standard interrogatories. Judges and lawyers need to be empowered to conduct careful, searching voir dire to ensure that cases are decided fairly on the merits. Fortin sends a strong signal that the Supreme Court is not interested in curtailing voir dire because doing so will undermine the right to a fair trial.

In Juries We Trust, Sometimes

The New Jersey Supreme Court regularly proclaims its reverence for the jury system but it has also expressed reservations about the ability of trial lawyers and juries to adequately perform their responsibilities when it comes to resolving liability and damages in tort cases. In some rulings, our High Court has expressed complete confidence in the ability of juries to do the right thing, yet in others it feels the need to tie the hands of lawyers and keep the jury in the dark about the consequences of its decision making.

The classic example is the Botta Rule that prevents plaintiff and defense lawyers from arguing specific dollar amounts for damage awards to juries during the trial of tort cases. In the modern era, when jury verdicts receive wide publicity, there is little justification for this limitation. If a plaintiff’s lawyer makes the mistake of asking for too much money or the defense lawyer too little, the most effective control is the worthy adversary who can disassemble the argument and turn it to his client’s advantage. Allowing lawyers to present dollar specific positions on damages would structure the process for juries charged with awarding damages for pain and suffering who get little guidance on how to approach the problem from the standard jury charge. Does anyone really believe that the Time Unit Rule is a legitimate and honest way of presenting an argument?

Another example of the Court’s lack of confidence in juries is the ridiculous method of trying UM and UIM cases. Trial courts are not permitted to advise the jury about the real identity of the defendant insurance company or to explain what the claim is really about. The lawyers and parties are forced to pretend that they are trying the original tort case against the responsible driver. Does anyone in the system really believe that juries are going to award damages to a plaintiff only because an insurance company is the real party in interest? Is forcing lawyers to engage in a charade good practice?

If the Justices had complete confidence in the system they lead, full jury disclosure would be the norm, so that everyone could deal with the claim in a straightforward manner.

The disconnect between rhetoric and practice becomes most pronounced in the Supreme Court’s holdings on ultimate outcome charges. When our High Court decided, in Roman v. Mitchell, 82 N.J. 336 (1980), to inform jurors that a finding of less than 50 percent responsibility against defendants in a tort case was actually a no cause, the rationale was that “a jury informed of the legal effect of its findings as to percentages of negligence in a comparative negligence trial is better able to fulfill its fact finding function.” This confidence in the process led the courts to expand ultimate outcome charges to require an explanation that there is a trebling of damages in consumer fraud cases and to outline what the impact of ascribing responsibility to a pre-existing condition in a loss of a chance case in medical malpractice cases. However the Court refused to sanction a charge outlining the statutory limitation of damages that a hospital is required to pay under the Charitable Immunity Act, Weiss v. Goldfarb, 154 N.J. 468 (1998), because “it might induce a jury to shift to other defendants some percentage of negligence that the jury though should rightfully be assessed against the hospital.”

The tension between trust and mistrust surfaced again this term in Brodsky v. Grinnell Haulers, Docket No. A-46, 2004 LEXIS N.J. 943, where the court had to decide whether or not to inform jurors that a finding of liability against a defendant over 60 percent triggers joint and several liability. In Brodsky, a horrific motor vehicle accident caused the death of one driver and serious injuries to his passenger. A lawsuit was filed against both culpable drivers. One of the two defendants did not have insurance, went into bankruptcy and was dismissed from the legal action. To maximize their damages with the single insured defendant, the plaintiffs had to keep the bankrupt defendant off the verdict sheet or persuade a jury that the remaining defendant was at least 60 percent liable for joint and several liability to apply, N.J.S.A. 2A:15-5.2d. Defendant wanted to shift the blame to the missing defendant and limit their exposure to only their percentage of liability.

At the time of trial, the jury was not told why the bankrupt defendant was not participating as a party. Jurors were simply told that they should not concern themselves or speculate why the other driver was not a party. This instruction probably made the subject the hottest topic in deliberations. Plaintiff lost out when the trial court ruled that the bankrupt defendant would go on the verdict sheet for an allocation of responsibility.

Plaintiff now had to persuade the fact finders to hold the defendant at least 60 percent responsible in order to collect all of the damages awarded. In the opening statement, plaintiff’s counsel argued to the jury that the empty chair had little responsibility for the accident, “maybe a small fraction, 5 percent, 8 percent, maybe 10 percent.” Defense counsel’s objection to these comments was sustained and the trial court instructed the jury to disregard the specific percentage suggestions and not to consider them in determining percentage allocation. The trial judge believed that the Botta Rule prohibited this argument. The court also ruled, over defendant’s objection, that the jury would be charged about the ultimate outcome of the apportionment of responsibility, including the fact that “a defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award.” The charge appeared in the Model Jury Charges and the court delivered it verbatim. Defendant argued that providing the information about the consequences of the finding would improperly influence jurors to fix the percentage of the defendant’s liability at 60 percent or higher to provide the plaintiffs full compensation.

The jury returned a large verdict and assigned 60 percent of the fault to the solvent defendant. After defendant’s post-verdict motions for a new trial were denied, it appealed, arguing that the ultimate outcome charge should not have been presented because it unfairly brought about the inevitable result: 60 percent. Plaintiffs cross-appealed, arguing that the bankrupt party’s responsibility should not have been assessed and that their attorney should be able to take a specific position on the percentage of liability for each driver in opening and closing statements. The Appellate Division held that the bankrupt party should be subject to an assessment of fault, that plaintiff’s counsel cannot communicate what the percentage of liability against a defendant should be and that the ultimate outcome charge should not have been given. The case was remanded for a new trial solely on the issue of comparative fault between the two drivers. Plaintiff’s petition for certification was granted.

Plaintiff argued that it was improper to include the bankrupt defendant for an assessment of fault because plaintiffs were foreclosed from collecting against it by the discharge issued by the bankruptcy court. The appellant analogized the situation to keeping the employer off the verdict sheet in a third party liability case due to the worker’s compensation bar. The High Court rejected this argument and adopted the defendant’s position that inclusion of the defendant was mandated by the Comparative Negligence Statute that did not provide an exception for a party that became bankrupt. The ruling does not provide for listing entities on the verdict sheet that went bankrupt before they were joined as parties.

The High Court also ruled that an ultimate outcome charge should not be given about the consequences of a verdict that is above or below 60 percent. The Justices believed that the explanation was irrelevant to the Jury’s deliberations on the defendants’ relative responsibility for the accident and delivery of it was prejudicial “because it may have led the jury to the forty-sixty allocation, shifting a percentage of fault from [one defendant] to [another defendant] in order to assure plaintiffs a full recovery of their damages”

The Justices were sensitive to the plaintiff’s argument that this result was incompatible with prior rulings that mandated ultimate outcome charges in order to assure that jurors were not acting under false assumptions regarding the operation of the law allowing them to render just verdicts. The plaintiff’s sharpest debating point was: do you trust juries? The answers was: yes, most of the time. While uncomfortable with the charge of inconsistency, the Court did not flinch from concluding that the charge should not be given in this case:
Our Court in addressing at various times whether an ultimate outcome charge is appropriate in a particular case has not attempted to bridge that philosophical divide by adopting an overarching theory to apply to all statutes and all circumstances. Instead, we have evaluated whether the purpose of the particular statute of law in question as well as the interest of justice would be advanced in each case by either giving or not giving an ultimate outcome charge. Such an individualized approach may appear inconsistent when applied over a wide spectrum of cases. But individual cases arise in different settings and under different statutes and present unique challenges and problems.

The Supreme Court took a different track from the lower courts regarding the expansion of the Botta Rule to liability and held that the plaintiff’s lawyer could argue to the Jury what specific percentages of liability should be assigned to the two defendants. The Justices refused to extend the Botta Rule to the issue of responsibility in a tort case because unlike damages, “the quantification of a specific percentage of a party’s negligence is not intrinsically and intractably subjective.” The Court also believe that juries were better equipped to evaluate arguments on liability because they do this routinely in their everyday lives, while awarding money damages is an experience unique to their brief stint as jurors on a tort case.

Ironically, the reason for taking the cuffs off the advocate was the Justices’ confidence that “jurors have the capacity to digest complex evidence and render fair verdicts” and are not “rustics.” This is true. The same philosophy would justify complete disclosure to the jury about the case they were deciding. The jury should have been told why the one defendant was not being defended in the lawsuit. This would have ensured that the jury was not left to speculate about the absence of an indispensable party. An ultimate outcome charge on joint and several liability should also have been given. A cautionary instruction outlining the reason why the information should not be outcome determinative would place the issue in a proper context. Careful voir dire would eliminate jurors who could not or would not follow the framework. Able defense lawyers know how to construct arguments to persuade jurors to decide the case fairly. A system of justice that allows jurors to decide life and death in capital cases should have no trouble allowing a fully informed jury to properly decide responsibility in a tort case.

This case was a skirmish in the ongoing war on joint and several liability between plaintiff’s lawyers and big business. Amicus briefs were filed by ATLA, the Product Liability Advisory Council and the New Jersey Business and Industry Association. Big industry and insurance were partially successful in persuading the Legislature to reduce responsibility for joint and several liability to environmental torts and conventional cases where their share of the liability was in excess of 60 percent. This case was a legal victory for the defendants because they believe it will reduce the numbers of cases in which they will be held accountable for the full amount of the verdict in what remains of joint and several liability. Including a bankrupt party on the verdict sheet was also a victory for the defense. The winners will use these victories nationwide to argue that even the liberal courts are not siding with the plaintiffs on these issues.

Legal Malpractice

In a difficult legal economy, lawsuits against lawyers have been a singular source of dynamic growth. This has been aided and abetted by the development of legal standards that encourage plaintiff’s recoveries and rewards the parties with counsel fees. As a consequence, the breath and scope of attorney malpractice has expanded by leaps and bounds. All other professionals are protected by a two-year statute of limitations. Lawyers are on the hook for six years and the limitation period is routinely extended under the discovery doctrine. Are there any real limitations? This term the Supreme Court imposed some reasonable boundaries on the discovery doctrine in the statute of limitations, Vastano v. Algeier, 178 N.J. 230 (2003), but expanded the scope of liability in Garcia v. Kozlov, 179 N.J. 343 (2004).

Anthon Vastano was injured in a motor vehicle accident on February 1986, prevailed in a liability trial, then received a verdict of $41,400 in a separate damages trial on Nov. 13, 1989. The plaintiff was aggrieved because he received a verdict substantially below what he believed the case was worth and far less than the offer of $185,000. The aggravating circumstance was a sanction barring the testimony of plaintiff’s medical expert on plaintiff’s inability to work because the physician’s report was not produced in discovery. This negated a significant claim for lost wages.

It looked like plaintiff’s counsel pulled the frying pan out of the fire when he obtained a new trial on grounds that the defense lawyer issued a subpoena improperly to obtain and use plaintiff’s medical records at trial. Plaintiff then picked up his file and transferred it to a new lawyer. Unfortunately for the plaintiff and his first lawyer, the Appellate Division vacated the order for a new trial and reinstated the verdict on Jan. 30, 1991.

On Dec. 23, 1996, plaintiff filed his legal malpractice action against his former attorney, asserting that the discovery sanction had diminished the amount of the verdict. Plaintiff had rejected the settlement offer at the outset of trial. The defendant’s appellate brief contained a footnote relaying that an offer had been renewed and rejected while the jury was out. The client contended that his lawyer had failed to communicate the offer a second time and that he would have accepted it after the adverse rulings at trial cut the heart out of his claim.

The legal malpractice defendant moved for summary judgment on the grounds that the limitation period had run; because the case was filed more than six years after the damages award and more than six years after plaintiff had possession of the file with the information about the second settlement offer. Plaintiff opposed the motion, arguing his cause of action did not accrue until he was harmed by the appellate court’s decision to take away the new trial. The client also argued the claim regarding defendant’s failure to communicate the second settlement offer did not arise until his new attorney discovered the footnote in the appellate brief sometime in January of 1991 or within a reasonable period after he came into possession of the file.

The trial court granted the defendant’s motion for summary judgment, finding the six-year limitation period began to run on the trial performance issues with the return of the damages award and the opening bell rang on the undisclosed settlement offer when the plaintiff took possession of his file with the appellate briefs in it. The Appellate Division upheld the trial court’s decision and Supreme Court granted plaintiff’s petition for certification.

The Supreme Court unanimously upheld the lower court’s decision and barred the claim. A careful examination of the record revealed the plaintiff had participated fully in the preparation of the case, he was aware of the rulings at trial and believed that “something was fishy.” After the new trial was obtained, plaintiff instructed his lawyer to forward the medical report to defense counsel. Plaintiff conceded his lawyer’s missteps caused him to retain new counsel to get the case tried “correctly.” Although plaintiff disclaimed specific knowledge of the rulings made at sidebar, he learned about the matter in its entirety when he examined the file after picking it up. The Court believed that the complaint on this claim was also barred.

Resolution of the failure to communicate the second settlement offer was more problematic for the Court. Judges are extremely reluctant to allow lawyers off the hook who do not comply with their ethical obligations to keep their clients apprised of developments in the case. The plaintiff argued convincingly that he was not aware the offer had been renewed until after plaintiff’s new attorney had the opportunity to scrutinize the appellate briefs in January of 1991. Plaintiff argued that it would be unfair to charge him with constructive knowledge of the second offer because this kind of information is not generally presented in appellate briefs and defense counsel had buried the information in a footnote. The plaintiff asked the court to remand the matter for a hearing to ascertain when he became aware of the second transmission of the offer. The defendant argued that the only relevant consideration was the date plaintiff had the information necessary to discover a cause of action, not when he actually found out. In the parlance of the courthouse corridor, they had six years to look and didn’t get it done.

The High Court pronounced the starting gun for the six-year limitation period in a legal malpractice action goes off when the client has the means to discover the malfeasance through the exercise of reasonable diligence, even when the ignorance is a consequence of the lawyer’s ethical failure to communicate the information. Justice Albin prescribed the following formula to evaluate the issue:
The accrual date ... is set in motion when the essential facts of the malpractice claim are reasonably discoverable. The accrual of the cause of action is not governed by the date when plaintiffs actually learned of the uncommunicated settlement offer if that information was reasonably discoverable at an earlier time ... In light of the statute’s liberal limitations period, we decline in this case to graft an additional grace period beyond the dictates of the discovery rule or to embark on a fact-sensitive analysis based on the thickness of plaintiff’s file.

Six years is an eternity. The court will not extend it unless there is an extraordinary justification for doing so.

The idea that the parties in a legal malpractice case can hibernate until the appellate process in the underlying case is resolved was previously rejected in Grunwald v. Bronkesh, 131 N.J. 483 (1993). The client has to commence the lawsuit against his lawyer when he knew or should have known of the malfeasance, and then move to stay the action until the appeal has been completed. The court has discretion to stay the case or allow it to move forward. Lawyers handling legal malpractice cases who fail to appreciate the significance of this ruling risk becoming the next defendant.

When a plaintiff wants to hold his attorney accountable for malpractice in a tort case, he is generally required to prove the “case within a case.” Albee Assoc. v. Orloff & Siegal, 317 N.J. Super. 211, 222-223 (App. Div. 1999). A plaintiff must prove by a preponderance of the believable evidence that he would have prevailed in the underlying lawsuit, in order to collect compensatory damages in the legal malpractice case. Example: A plaintiff is injured in a two-vehicle accident after driving at a high speed through a stop sign. The lawyer fails to file the complaint on time. While there is a deviation from accepted standards of legal practice, the plaintiff is not entitled to recover because she is unable to prove that the other driver was negligent. This rule has been an important control on professional responsibility.

The “case within a case” requirement has been criticized by judges and commentators because it unfairly places the burden of persuasion on the client who was victimized by the lawyer’s malfeasance. The liability in many cases is not clear-cut. The lawyer’s relationship with the client gives him insight into the weaknesses of the case that he can exploit to his advantage in the legal malpractice case. The lawyer’s lack of diligence may have squandered the opportunity to develop the liability in the case while the footprints were fresh. The lapse of time frequently deprives the plaintiff of the ability to gather the facts, locate witnesses and present credible testimony to support the case. The rule also fails to take into account almost every case has settlement value even with a mixed liability picture. In the “case within a case” format the legal malpractice plaintiff is forced to go for the whole loaf or nothing at all.

To compensate for these inherent difficulties, some courts have allowed plaintiffs to argue they lost the opportunity to settle their negligence case utilizing expert testimony to shed light on the relative strength and value of the claim. This option was previously recognized by the New Jersey Supreme Court in Lieberman v. Employers Insurance of Wausau, 84 N.J. 325, 342-343 (1980). This strategy allows the plaintiff to bypass the “case within a case” requirement.

Plaintiff’s counsel in Kozlov decided to forego the case within a case approach and argue that the defendant’s legal malpractice forced plaintiff to accept less than full value in settlement of a personal injury case. After plaintiff was injured in a multivehicle accident, her lawyer failed to join one of the potentially culpable defendants in the lawsuit within the two-year statute of limitations. Plaintiff was referred to a new attorney who failed in his attempt to bring the missing party into the case. A second motion was also filed to join the first attorney as a party because the entire controversy doctrine at the time included parties as well as claims. The application was denied, but an order was entered preserving plaintiff’s right to file a future malpractice action. Plaintiff’s new attorney counseled the plaintiff to take the offer of $87,000 because the empty chair defense undermined the strength of plaintiff’s case. The lawyer appraised full value at $200,000 to $250,000 and instructed the client to pursue a legal malpractice case.

Plaintiff argued that the harm that befell her was the lost opportunity to obtain the full measure of her damages due to problems she encountered in pursuing a case without an indispensable party. The defendant attorney argued the settlement was a fair resolution of the case. Defendant also argued that he had no legal responsibility at all because the missing party was not negligent and the impact with this vehicle was not the cause of any injury. Defendant argued he could not be responsible unless the plaintiff proved that the missing driver was negligent and was a proximate cause of his injuries. Each party sought judicial imprimatur of their legal strategy in pretrial motions.

The trial court fashioned a hybrid remedy to allow all of the issues to play out during the trial. The judge allowed the plaintiff to present testimony about the value of the claim but all of the testimony about the accident and the injuries would come into play to give the jury a complete picture of the case.

Plaintiff produced factual testimony about how the accident happened; lay and medical testimony on her injuries; testimony from her second attorney regarding the history of the case, his opinion on the value of the claim and the reasons for the settlement. Plaintiff testified that she accepted the settlement only because of her former lawyer’s mistake and her ability to obtain compensation in a legal malpractice action. An expert testified that the first attorney committed malpractice. Defendant produced expert testimony that there was no deviation because the driver at issue was not culpable.

The trial judge ruled as a matter of law that defendant committed malpractice. Two questions were posed to the jury: 1) Was defendant a proximate cause of plaintiff’s loss? 2) What was the reasonable settlement value of plaintiff’s claim?

The jury answered the first interrogatory yes and returned a verdict of $225,000 in response to the second question. The verdict was reduced by the amount of the $87,000 settlement and the $45,000 in counsel fees arising out of the first case.

Defendant appealed, arguing that plaintiff’s claim should have been dismissed because she did not prove the liability case against the absentee driver. The Appellate Division reversed and entered judgment for the defendant, finding the trial court abused its discretion in failing to follow the “case within a case” format given the dispute over the responsibility for the accident and the causation of the injuries. It refused to grant a new trial because plaintiff’s selection of the trial strategy invited error. It looked like the hapless plaintiff was going to have to hire a new legal malpractice lawyer for her next case when the Supreme Court granted a petition for certification.

The Supreme Court reversed and held parties in a legal malpractice case need not proceed on the “case within a case” model. The case was remanded to the Appellate Division to consider other issues that were not considered the first time around. The Justices were impressed with the trial judge’s creative solution allowing the plaintiff to proceed with his theory of a lost opportunity to obtain full value for her claim while presenting all of the liability and damages testimony. The beauty of this approach was that it also provided a platform for the defendant to persuade the jury that the omission of the one driver as a party did not affect the liability of the remaining parties for the accident or cause the plaintiff to accept less than full value of the case in settlement.

The High Court delegated to trial judges the decision on how to model each trial on a case-by-case basis. The Justices instructed trial courts: “the proper approach in each case will depend upon the facts, the legal theories, the impediments to one or more modes of trial, and where two or more approaches are legitimate, to plaintiff’s preference.” Trial judges now have the freedom to structure these cases to make sure each party has a fair opportunity to advocate their client’s position to a jury. The road to recovery has now become easier to navigate.

Medical Malpractice

The two medical malpractice cases decided by our Supreme Court this term involve two recurring issues that have attracted the attention of our appellate courts: the plaintiff’s burden of proof in loss of a chance cases and the affidavit of merit. Verdicchio v. Ricca, 179 N.J. 1 (2004), sets forth the requirements of a prima facie case in a failure to diagnose cancer case and in Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), the Justices have provided what it hopes is the last word on the affidavit of merit.

When a plaintiff claims that a physician’s failure to diagnose his cancer increased his risk of metastasis and death, what evidence does he have to produce to make out a prima facie case? Under the substantial factor test, the question that must be answered is: “whether the defendant’s deviation from standard medical practice increased a patient’s risk of harm or diminished a patient’s chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm.” Gardner v. Pawliw, 150 N.J. 359 (1997). But what happens when medical science cannot provide the information necessary to determine whether or not a delay in diagnosis caused actual harm to a patient? This is the vexing problem that the courts had to deal with in Verdicchio.

Verdicchio is not the first time our courts have grappled with this problem. The seminal New Jersey case is Evers v. Dollinger, 95 N.J. 399 (1984). Evers presented to her physician with a small lump in her breast and was told to “stop worrying and go home and relax.” Seven months later, plaintiff was diagnosed with breast cancer, underwent surgery, and a pathological examination of the tissue revealed infiltrating ductal carcinoma. At the time the lawsuit was tried, plaintiff’s claim was “the delay itself enhanced the risk that the cancer would recur” and “the delay itself caused both physical and emotional injury.” Plaintiff’s expert pathologist testified the delay in diagnosis increased the risk the patient would be in the class of patients who have recurrences. The trial court dismissed the case because the physicians could not establish within a reasonable degree of medical probability the delay in diagnosis placed the plaintiff in this category. The Appellate Division affirmed.

During the appellate process, plaintiff’s cancer reignited and spread. The Supreme Court reversed, holding “plaintiff should be permitted to demonstrate, within a reasonable degree of medical probability, that the seven months delay resulting from defendant’s failure to have made an accurate diagnosis and to have rendered proper treatment increased the risk of recurrence or of distant spread of plaintiff’s cancer, and that such increased risk was a substantial factor in producing the condition from which plaintiff currently suffers.” This formulation is known as the “increased risk/substantial factor” test and “has become the basis for the determination of proximate causation in malpractice cases involving a pre-existing condition.” Brown, A. (2001), New Jersey Medical Malpractice Law, New Jersey: ICLE, p. 282.

In Verdicchio, a 17-year-old boy complained to his family physician over the course of several months about fatigue, weight loss and bowel problems. Then came symptoms of lower extremity pain. The physician referred the patient to a gastroenterologist who indicated that the patient might have irritable bowel syndrome. An over-thecounter drug seemed to alleviate the diarrhea.

Approximately one year after the first visit to the family physician, the young man collapsed at a track meet complaining about severe leg pain. The physician recommended the application of ice and an ace bandage. Two days later the patient collapsed at another track meet and the doctor recommended more of the same. The symptoms worsened and a referral was made to an orthopedist.

The orthopedist ordered X-rays and an MRI that revealed a mass in patient’s leg. Afollow-up biopsy revealed that the patient had a malignant tumor in his left leg. A CT scan revealed metastasis to the lungs and internal organs. The patient died six months later. Approximately six months elapsed between the time the patient first complained of leg pain to the family physician and the diagnosis of the cancer by the subsequent treating physicians.

A wrongful death and survivorship action was filed against the family physician. Plaintiff’s expert in family medicine testified the defendant deviated from accepted practice standards when he failed to do a thorough physical examination of the plaintiff’s leg with X-ray studies after complaints were made about pain in the lower extremity.

The challenge for the plaintiff was how to prove the clinical significance of the six-month delay in the diagnosis. Plaintiff did not retain an oncologist as an expert, but relied on the same family practitioner to present the evidence on “loss of a chance.” The expert testified that the tumor was present when the patient began to experience weight loss about eight months before the diagnosis, and also when the patient was experiencing leg pain. He testified that compliance with accepted standards of medical practice would have resulted in an 85 percent chance of a five-year survival if the cancer was localized. The conclusion was premised upon medical studies demonstrating that “current treatments for this cancer have been remarkably successful in nonmetastatic disease.” The expert was not able to say when the cancer had spread to the patient’s lungs or other parts of his body. The expert also testified that if the diagnosis had been made a few months after the first complaints of leg pain had been recorded, that the patient would have had a 20 to 30 percent chance of a five year survival.

Defendant’s oncologist testified that the discovery of the cancer when the first complaints about weight loss and leg pain were made would not have changed the ultimate outcome.

Defendant moved to dismiss the plaintiff’s claim at the close of his case and again at the end of the trial. Defendant argued that plaintiff did not make out a case under Evers because he did not show that the cancer had not metastasized when the defendant had allegedly committed malpractice. The defense lawyer argued persuasively that the opinion of the plaintiff’s expert on increased risk hinged almost entirely on the proposition that treatment is successful before the cancer spreads. According to defendant, this omission resulted in failing to show the deviation increased the plaintiff’s risk of harm from the pre-existing condition or the increased risk was a substantial factor in bringing about the patient’s death from the disease. Plaintiff countered that his inability to stage the cancer was a consequence of defendant’s failure to do the X-ray studies when the patient first began experiencing symptoms of pain in the leg.

The trial court reserved decision on the motions at trial and the jury returned a plaintiff’s verdict answering the following questions affirmatively:
- Defendant’s treatment of the plaintiff was negligent;
- The negligence increased the risk of a bad outcome; and
- The increased risk was a substantial factor in bringing about the ultimate harm.

The damages award included $6.5 million for survival and $1.5 million for wrongful death. The jury allocated 55 percent of the injury to the defendant’s malpractice and 45 percent to the preexistent disease, leaving plaintiff a net recovery of $4.4 million.

Defendant’s post-trial motions for dismissal and j.n.o.v. were granted by the trial judge on the grounds that the plaintiff’s inability to prove that the tumor was localized on the date that the malpractice was committed was fatal to the requirement of showing there was a chance of avoiding the harm. The Appellate Division affirmed the decision. The Supreme Court granted plaintiff’s petition for certification, reversed the courts below and reinstated the jury verdict.

Justice Long, writing for the majority, concluded that plaintiff adduced sufficient evidence to make out an “increased risk of cancer case.” Plaintiff was simply required to prove defendant’s failure to perform an examination that would have led to the discovery of the cancer increased the risk the plaintiff would lose the opportunity for treatment at an earlier stage. The majority found the following ingredients of the case were sufficient to pass muster:
- The physician deviated when he failed to conduct the thorough examination of the plaintiff’s leg;
- Plaintiff was suffering from cancer at the time of the deviation that could have been diagnosed, if an examination had been performed;
- Had the cancer been diagnosed, its stage would have been known;
- If the cancer was localized, plaintiff chance of five-year survival on immediate treatment was 85 percent; that if the cancer had metastasized, his chance of survival with treatment was slightly greater than 20 to 30 percent;
- The mere passage of time had given the cancer a window to metastasize to other areas of his body and the cancer was less remediable and more intractable; and
- Plaintiff’s chance of survival was reduced.

In reaching this decision, the court applied a presumption in delay of cancer diagnosis cases that “the passage of time with concomitant delay in treatment almost invariably results in a more serious prognosis.” The plaintiff in this case did not have to prove that the cancer had not spread when the defendant committed malpractice and he was not required to establish statistical probabilities of survival. The requirements of a prima facie case are met as long as expert testimony concludes the delay increased the risk of an adverse outcome. There was no testimony that a timely diagnosis would have changed the patient’s treatment or the course of his disease would have been different. This is not required. Jury decision making in these cases is essentially a value judgment regarding the consequences of failing to make a timely diagnosis, including whether the plaintiff’s prognosis was affected.

Did the defendant meet its burden of proof on apportionment? Finding it conclusory, Justice Long was not impressed with the defendant’s expert testimony that the outcome would have been the same if the defendant had diagnosed the cancer at the appropriate time. This did not seem to matter. The Court found the Jury had “effectively” apportioned the injury. The Justice’s comments signal that the jury can also make a value judgment on apportionment without precise expert testimony from defendants to guide the way.

The opinion in Verdicchio was not unanimous. Justice Jaynee LaVecchia’s sharp dissent charged plaintiff with failing to prove that the defendant’s failure to diagnose the cancer earlier caused him any actual harm. The Justice focused sharply on the real medical evidence presented at trial and concluded that when the cancer was discovered six months after the alleged malpractice was committed, the plaintiff already had advanced disease. Justice LaVecchia believed that the basic building blocks of a prima facie case were missing:
There was no opinion offered on his chance of survival if there was evidence of cancer in his lungs at that time. Nor was there any expert testimony that the hospitalizations, operative procedures, and pain and suffering would not have occurred if a diagnosis had been made at that earlier time.

The dissenter concluded that the court was allowing the plaintiff to “skip the step that requires prima facia proof of causation.”

Every system of law needs standards. The common law developed the flexible concept of proximate cause over the centuries to meet the changing demands of the times. Medical science has not developed the tools to measure the consequences of a delay in diagnosis of most cancers. If a plaintiff cannot prove what the harm was in these situations, do you turn the plaintiff away or loosen the standards of proof? This is a very difficult policy question for the court to resolve. In failure to diagnose cancer cases, our Supreme Court has decided to dramatically reduce the plaintiff’s burden of proof. The benefit to the aggrieved patient may be an injustice to the physician. History will determine if this was the just thing to do.

There were also interesting evidential questions for the courts to deal with in this case. Defendant complained that the trial court’s rulings allowed irrelevant, prejudicial testimony to sway the jury. Decedent’s mother was allowed to testify about a telephone conversation she had with the defendant after her son’s cancer diagnosis was made, in which the defendant continued to deny that the boy had cancer. The physician adamantly denied this was the substance of the discussion. Defendant objected to the testimony on grounds it was irrelevant and prejudicial. The Supreme Court upheld the trial court’s ruling because it bore on whether the defendant approached the case as a reasonable physician would, or if he simply believed “in the unassailability of his own clinical judgment.”

Another witness was permitted to testify about the account the mother gave of this conversation with the physician in the highly charged aftermath of the fateful phone call. Defendant objected to this testimony as irrelevant hearsay. The Supreme Court again sustained the trial court’s decision because the mother’s statements were excited utterances, R. 803(C)(2), and relevant because it assisted the jury in determining which version of the conversation was correct.

Plaintiff attempted to develop a theme at trial that the defendant’s failure to refer the plaintiff to specialists was due to financial incentives provided by the health care carrier. The record fails to disclose any hard evidence of this contention. Anticipating the attack, defense counsel made the mistake of trying to diffuse the allegation in opening statement. Plaintiff’s counsel briefly attacked the defendant on cross-examination with the allegation over defense counsel’s objection. The defendant denied that such policies existed, or that he was unwilling to refer the patient to a specialist for economic reasons. The Supreme Court questioned the relevance of this “frolic and detour,” but sanctioned it only because defense counsel had opened the door.

Perhaps these rulings are minor deviations from the norm in a lengthy, complicated trial that do not warrant a reversal. However, these three episodes of irrelevant, immaterial testimony are examples of the ongoing deterioration of standards governing the admissibility of evidence in civil trials. Many good trial judges commonly believe they only get reversed for excluding evidence, not for admitting it. This case may illustrate this proposition. The emotionally charged telephone conversation between the mother and her son’s physician had no relevance to the Jury’s inquiry into whether the defendant committed malpractice. Coupled with another witness’ irrelevant recounting of the hysterical aftermath, the plaintiff was able to construct a house of cards that made the defendant’s character an issue and unleashed a credibility contest that had no bearing on the difficult medical issues before the jury. The flames of prejudice were further fanned with the unsubstantiated allegations of financial incentives to limit referrals to specialists. This is especially problematic where a jury is making value judgments in a malpractice case that cannot be resolved by scientific evidence. The Rules of Evidence are a filter for trial judges to provide testimony that keeps the jurors focused on the important issues of a case. These rulings had the capacity to lead the jury astray.

Right to Hide

Government is notoriously inept in its regulation of public health and safety. Historians have documented the fact that reform is generally promulgated by powerful special interests that want the government’s protection from political crusaders and plaintiff’s lawyers. Major products liability lawsuits have been more successful than government in identifying corporate malfeasance. Discovery has been a powerful tool in exposing irresponsible decision making that has caused mass disasters.

Manufacturers and their lawyers labor hard to prevent plaintiffs from discovering evidence of corporate misconduct. When forced to produce damaging documents and evidence, corporate defendants insist on protective orders that prevent public dissemination of harmful information. Confidential settlements always protect the secrets unearthed in the lawsuit and the public never learns the facts. Plaintiff’s lawyers are charged with obtaining a result for their clients and are unwilling to forfeit reasonable settlements in the service of the public interest.

While the rationale for entering the orders is protecting the trade secret of the corporate defendant from competitors, courts rarely inquire into whether this is a legitimate concern. The paramount interest for defendants is always litigation protection.

Public interest groups rail against a process that prevents the public from becoming aware of a public safety issue because the disclosures are made in litigation between private litigants. Legislation limiting the execution of protective orders has been proposed in Congress and state legislatures but has always been stalled by powerful lobbyists. Another avenue pursued by public interest groups has been legal actions to force disclosure. This has also been generally unsuccessful. Courts are loath to inject the public interest into private litigation in the face of legal traditions that place no value on disclosure. Many of the judges and civil practice committee members spent considerable professional time and energy perfecting the “fine art” of protective orders. It runs counter to the grain to dismantle the corporate shield.

In Hammock v. Hoffman-LaRouche, Inc, 142 N.J. 356 (1995), Public Citizen won an important legal victory when it persuaded the High Court to recognize a common law right to access documents subject to a protective order when they were filed with a court in a summary judgment motion. The Court also recognized the standing of public interest groups to intervene in the lawsuit. There is a presumption of access for documents filed with the Court and in order to overcome it, a party must show by a preponderance of the evidence that the interest in secrecy outweighs the interest in disclosure. The right to disclosure did not apply to discovery materials subject to confidentiality orders or discovery motions.

With Hammock, Public interest groups established a beachhead in the battle for disclosure; they sought the opportunity to expand the presumption to unfiled documents obtained in discovery.

The opportunity presented itself in Estate of Frankl v. Goodyear Tire and Rubber Company, Docket No. A-52, 2004 N.J. LEXIS 918. Plaintiffs filed a products liability case alleging defects in tires proximately caused three deaths and a serious injury in a motor vehicle accident. The parties entered into a consent protective order to accompany defendant’s disclosure of certain documents in discovery. Plaintiff’s counsel was prohibited from disseminating the documents to anyone other than “their employees, experts or consultants employed and retained in connection with this specific action.” Plaintiffs were permitted to provide confidential materials to “other attorneys with similar cases against defendant” as long as the defendant received proper notice of the disclosure and the recipients agreed to the protective order. Other features of the order included a sealing provision that protected the documents divulged in motions and required the plaintiff to return the documents after the case was over.

The parties had a disagreement over what documents should be included in the order and the dispute played out in motion practice before the trial judge. The documents in question remained sealed during the proceeding. Consumers for Auto Reliability and Safety, a national nonprofit automobile and consumer safety organization, sought to intervene to gain access to the documents contending the defect was responsible for a number and accidents and that public safety required disclosure. The intervenor wanted to take Hammock to the next step and establish a right of access to documents with regard to both filed and unfiled materials. The plaintiff settled and withdrew opposition to the motion to enforce the protective order.

The trial judge allowed CARS to intervene and denied defendant’s motion to enforce the protective order without prejudice “subject to a final determination of the validity of the consent order.” The trial court specifically rejected defendant’s argument that unfiled discovery materials are insulated from access and noted that judges should not “rubber-stamp Consent Orders containing blanket confidentiality provision that are not accompanied by extrinsic support demonstrating good cause for their approval.” The trial court proposed a model of practice to determine the propriety of entering protective orders but also noted that “litigants could bypass those procedures by entering into a stipulation of confidentiality” without formal court approval.

The court went through the documents and determined which could remain protected and which could be disclosed. The Appellate Division reversed, holding there was no right of public access to unfiled documents produced in discovery. The appellate judges concluded that CARS lacked a legal basis to obtain the documents. The Supreme Court granted the petition for certification filed by CARS. The high stakes brought out amici participation by Public Citizen Inc., the Center for Auto Safety, the Product Liability Advisory Council, the New Jersey Defense Association, The New York Times, the Pharmaceutical Research and Manufacturers of America and the New Jersey Press Association.

The arguments were simple and straightforward. CARS argued the good-cause requirement of R. 4:10-3 gives the public the right to seek access to discovery with regard to both filed and unfiled materials. Goodyear stated there is no recognized right of access to unfiled discovery materials and the investigatory function is relegated to governmental agencies charged with protecting public safety.

The Supreme Court affirmed the Appellate Division decision in a per curium opinion because R. 4:10-3 does not provide a “source of entitlement” to public access to discovery documents. The High Court was heavily influenced by the fact that “the universal understanding in the legal community is that unfiled documents in discovery are not subject to public access.” The prospects for change are dim given the Supreme Court’s observation that “Hammock has been overread as clearly weighing in on the issue.” The Justices referred the issue to the Civil Practice Committee for a proper burial.

The Alzheimer’s Rule

When a mentally incompetent patient injures a care provider in a health care facility, he does not have legal duty to compensate the injured party. Berberian v. Lynn, 179 N.J. 290 (2004). A head nurse at Bergen Pines fractured her right leg in a physical encounter with an Alzheimer’s patient. The complaint in the lawsuit alleged that defendant “negligently, recklessly and carelessly struck plaintiff, causing her injuries.”

Defense counsel moved for involuntary dismissal after plaintiff’s presentation of the evidence at trial on the grounds that defendant lacked the capacity to be negligent. Plaintiff opposed the motion, arguing that defendant should be held to an objective, reasonable person standard, without regard to his mental disability. The trial court denied the application, but over plaintiff’s objection, the jury was charged that defendant should be judged as a reasonably prudent person who has Alzheimer’s dementia.

During deliberations, the jury asked if they had to determine if defendant had the capacity to appreciate the consequences of his actions in order for them to find that the defendant was negligent. The trial judge advised the jury that defendant had the burden to prove that he did not have the capacity to appreciate the danger in which he placed the plaintiff. The verdict was a no cause.

On appeal, plaintiff argued that the trial court should have charged the objective standard in its jury instructions. The plaintiff was armed with historical common law precedent providing that mentally deficient adults are liable for their torts. Restatement (Second of Torts Sec. 283B (1965). The Appellate Division approved of the standard applied by the trial court and upheld the jury verdict. Berberian v. Lynn, 355 N.J. Super. 210 (2002). Judge Lintner stated in his concurring opinion the defendant’s motion for involuntary dismissal should have been granted because the Alzheimer’s patient had no duty of care as his “dementia and corresponding inability to act reasonably [was] the very reason for his being institutionalized and under the care of the plaintiff.”

After the case reached the Hughes Justice Center, Justice John Wallace Jr. adopted Judge Jack Lintner’s reasoning on behalf of a unanimous court, and held that the defendant had no duty of care. Justice Wallace carefully reviewed the record and learned the staff knew the defendant’s violent, unruly propensities. This is why he was assigned to a special ward for unruly patients. Caregivers were instructed to call security when there was a problem. The incident itself was an outgrowth of the patient trying to leave the premises by a fire escape. (You really can’t blame him for that, can you?) It was also pointed out that plaintiff had received worker’s compensation benefits. Out-of-state precedent supported this ruling.

The ruling is a variation of the fireman’s rule: “the professional caregiver may not recover for the conduct of a patient when this conduct is, in part, the reason for the caregiver’s role.” We now have the Alzheimer’s Rule. As the Justices know, we all may be headed for that fire escape some day.

Expert Testimony

It is axiomatic that expert medical testimony is required to prove a causal relationship between an injury and an accident. The envelope has been expanded in toxic tort cases to permit epidemiologists and other scientists to testify that an occupational disease was caused by an exposure to a chemical as long as the scientific community accepts the methodology and reasoning underlying the opinion. Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991); Landrigan v. Celotex Corp., 127 404 (1992). Rubanick recognized that other disciplines in the modern scientific world had the background, training and experience to make judgments on whether or not a plaintiff’s injuries were causally related to a chemical exposure. As toxic tort lawyers know, scientists frequently have more knowledge about the propensity of chemicals to cause disease than physicians because fields like epidemiology and toxicology are more focused on the cause of chemicallyinduced disease. Physicians do not have the time or inclination to read esoteric literature on animal studies or to perform statistical analysis of human populations and disease.

In Clark v. Safety-Kleen Corp, 179 N.J. 318 (2004), this rationale was expanded to allow a research chemist to testify that a chemical was the cause of a plaintiff’s injury to the skin of his right index finer. Clark was an automobile mechanic that suffered skin damage to the index finger of his right hand after using defendant’s chemical cleaning product. Plaintiff contended in his products liability case that defendant’s chemical cleaning product was defectively designed because it contained a dangerous ingredient capable of causing damage to human skin and it lacked adequate warnings about its dangers. Plaintiff was treated by an orthopedic surgeon and underwent four surgical procedures. Defendant denied that its product was defective and produced expert medical testimony that stated plaintiff’s injury was caused by strep infection, not chemical exposure.

The plaintiff’s scientific expert had a Ph.D. in Organic Chemistry and had worked for a chemical company doing research for thirty-seven years. The scientist had experience with the chemical ingredient at issue in the case. Plaintiff qualified the expert “in the fields of chemicals and cleaning products on human tissue and the design of chemical products.” The witness had reviewed the plaintiff’s medical records, the MSDS sheets about the chemical, the manufacturer’s testing on the chemical and scientific literature in the field. The chemist did not personally test the chemical at issue in the case on human skin. The scientist testified that an expert in his field would rely on this type of information to formulate opinions regarding the effects of chemicals on human skin. The witness gave a description of the characteristics of the chemical and its deleterious effects on the human body. The scientist testified that the chemical caused the plaintiff’s injury. The scientist also testified that the plaintiff’s exposure made him more susceptible to the infection. The expert also testified that the warning on the label was inadequate. Defendant strenuously objected to allowing the scientist to testify on causal relationship.

The trial court allowed the testimony over the objection of the defendant and the jury awarded plaintiff $400,000. The Appellate Division reversed, holding the scientist’s medical causation testimony was beyond the scope of the expert’s qualifications and that this also tainted his opinion regarding the product label. Plaintiff’s petition for certification was granted to explore the ruling on the scope of permissible testimony by the chemist.

Factors propelling the High Court’s decision to reverse the appellate court and to reinstate the jury verdict were the expert’s impressive credentials and his specific knowledge of the chemical properties of the toxic substance and its propensity to cause injury. An important factor in the case was the existence of a medical opinion by the plaintiff’s treating orthopedic surgeon on medical causation. The defense attacked the physician’s testimony on the grounds that he lacked specific knowledge of the properties of the chemical, and that he used an unaccepted scientific methodology to reach his conclusions. Defendant had filed a pretrial motion to bar the physician’s testimony and also objected to his testimony at trial.

This dynamic convinced the Court how important it was to allow scientists with knowledge about the harmful effects of chemicals to provide the essential opinions required in the case. If the plaintiff’s physician is required to make clinical judgments without detailed knowledge of the chemical literature, isn’t the testimony of the scientist essential to supplement and reinforce the physician’s opinion? If the defense counsel’s aggressive strategy had succeeded, the physician’s testimony would have been barred because he lacked extensive knowledge about the chemical and the chemist’s testimony would have been prohibited because he was not a physician. The trial court recognized the symbiotic relationship between the two types of testimony and permitted it to give the jury a complete understanding of the issues. The New Jersey Supreme Court, which has blazed the trail for admissibility of scientific testimony in toxic tort cases, blessed the trial court’s exercise of discretion to evaluate the experts’ testimony as an indivisible whole and sanctioned it. Rubanick, Landrigan and Clark constitute an excellent blueprint for trial courts and trial lawyers to follow in toxic tort cases.

Parental-Child Immunity

Little Kathryn Buono was struck by a bicycle driven by five-and-a-half yearold “Hot Rod” Michael in front of his father at a neighborhood block party. Buono v. Scalia, 179 N.J. 131 (2004). Kathryn alleged in her personal injury case that Michael failed to exercise reasonable care in the operation of his bike and that his parents negligently supervised him.

Defendant’s summary judgment motions were successful on the ground that plaintiff had not overcome the presumption that Michael was incapable of negligence and the parents were entitled to the benefits of parental immunity, Foldi v. Jeffries, 93 N.J. 533 (1983). It was plaintiff’s position that immunity only applied to claims brought by children directly against their parents and not to cases brought by third parties against someone else’s parents. The decision was affirmed on appeal. A petition for certification was granted to explore the scope of parental immunity.

The Foldi Court held injured minors could not pursue personal injury cases against their parents for negligent supervision, but only for a parent’s willful or wanton failure to supervise their children. This immunity also applies to attempts by defendants in tort cases to implead the parents of injured minor plaintiffs as third-party defendants for negligent supervision. Two-and-a-half year-old Jennifer Foldi wandered away from her mother and was bitten by a neighbor’s dog. Plaintiff’s guardian ad litem brought an action against the dog owner, who filed a third-party complaint against the mother. The guardian ad litem amended the complaint to make mom a direct defendant. Summary judgment was granted on grounds of parental-child immunity and dismissed both the plaintiff’s cause of action and the third-party complaint.

The Foldi decision barred both the direct and the third-party claim against the parents because the allegation was one of simple negligence where a parent briefly lost sight of a child. The judicially constructed immunity was limited to “special situations that involve the exercise of parental authority and customary child care.” Id. at 551. The doctrine has not been applied to other situations, like motor vehicle accidents, because driving a car does not implicate legitimate child-rearing issues. France v. A.P.A. Transp. Corp., 56 N.J. 500 (1970).

Subsequent precedent has outlined the following analytical framework for assessing whether to apply parent-child immunity to the facts of a case, Murray v. Shimalla, 231 N.J. Super 103, 106 (App. Div. 1989):
- The first step requires the judge to determine what parental acts or omissions a fact finder could reasonably find to be the proximate cause of the child’s injury.
- The next step is to determine whether that conduct is protected by parental immunity, i.e. whether it involves the exercise of parental authority or the provision of customary child care.
- If it does, the next step is to determine whether the conduct constitutes a lack of parental supervision.
- If it does, the final step is to determine whether a fact finder could reasonably find that the conduct was willful or wanton

In Buono, the Justices revisited the scope of the Foldi decision. A sharply divided court categorically extended parental-child immunity to preclude liability against parents for negligently supervising children who injure third parties. The 4-3 majority found sufficient precedent in Foldi’s prohibition of the third-party complaint against the mother by the dog owner. Justice Peter Verniero found Michael’s father was engaged in “a valid exercise of parental decision-making entitled to judicial deference.” According to the Justice, “[i]f we were to force parents to defend against their negligent, but otherwise honest, errors of judgment in those settings, then we would risk opening the floodgates of intrusive litigation in precisely the manner that Foldi sought to avoid.”

In a dissenting opinion, Justices Long, Albin and James Zazzali wanted the immunity strictly limited to claims filed by children against their parents. The dissenters cited a nationwide trend abrogating and/or limiting the immunity and were opposed to extending its reach in New Jersey. With make-up of the Court set to change, this issue may undergo further scrutiny in the future.

Title 59

Dangerous conditions of property. Over the last several terms, the New Jersey Supreme Court has tightened the standards for liability and damages in Title 59 cases and the volume of litigation has declined dramatically. With the arrival of new Justices, will this trend continue in the future? For the first time in many years, the High Court has expanded the scope of TCA to impose responsibility for dangerous conditions of property when the injury occurs off the premises after the condition was created, Smith v. Fireworks by Girone, Inc., 180 N.J. 199 (2004), and for the failure to exercise reasonable care in conducting a rescue of a victim injured on public property, Aversano v. Palisades Interstate Parkway Commission, Docket No. A-54, 2004 N.J. LEXIS 710.

The town of Deptford held an annual festival in its park featuring a fireworks display run by a company that was also contracted to assist with the clean up of the explosives. A week after the show, a 10-year-old plaintiff found an unexploded canister in the park, carted it off, and was seriously injured a few weeks later while playing with it in the woods. Plaintiff’s mother brought a lawsuit against the fireworks company and the municipality. The plaintiff settled his claim with the fireworks company and stayed in the hunt against the municipality, alleging that a dangerous condition of public property was a proximate cause of the injury.

N.J.S.A. 59:4-2 provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury.
Defendant municipality moved for summary judgment on grounds that plaintiff did not meet the temporal requirement of the statute because the accident happened later on someone else’s property. The trial court denied the motion holding that the combination of the firework and the park was a consolidated dangerous condition that met the conditions of the statute. The trial judge believed a jury could find the dangerous condition was capable of creating a “continuous injury” from the time it was found by the boy up until the time the explosive detonated.

A jury found the unexploded debris constituted a dangerous condition at the park; the dangerous condition was a proximate cause of the plaintiff’s injury; the dangerous condition created a foreseeable risk of injury; and defendant’s action or inaction was palpably unreasonable. The jury returned a verdict in the amount of $1.6 million, allocating 56 percent of the fault to the municipality; 33 percent to the firework company and 11 percent to the plaintiff.

Two Appellate Division judges, reversed the summary judgment order with one judge dissenting. The majority believed they should literally interpret the statute and concluded that the park was not “in a dangerous condition at the time of the injury.” The judges also found that the fireworks device was not public property at the time of the accident. The dissenter believed that the statutory definition of injury was a more elastic term that encompassed a harmful contact or exposure that sets into motion the events that result in an injury. The plaintiff appealed to the High Court as a matter of right.

The critical question posed to the Justices in Smith was whether the plaintiff could recover under the language of the statute when the young boy was injured away from the park weeks after picking up the dangerous debris. Five Justices did not believe that precedent prohibited liability for a governmental entity when a dangerous condition of its property caused injury offsite at a later point in time. The majority found the Appellate Division’s reading of the statute to be “hypertechnical” because to do so would result “in the conclusion that a child who found a left-over firework in a public park and is injured on the spot has recourse against a careless public entity, but that a child who picks up the firework and takes it across the street to his home where he is killed or maimed, is remediless.” The majority conceded that “this case is not a perfect fit with the words of N.J.S.A. 59:4-2,” and justified its holding by citing its “obligation of the judiciary to give effect to the obvious purpose of the Legislature.”

In a dissent, Justice LaVecchia vigorously objected to the majority’s stretching of the language of the statute to support the plaintiff’s cause of action. To this Justice, a literal reading of the statute compelled the conclusion that “the public property here simply was not in a dangerous condition when plaintiff suffered his injury.” This is the beginning and the end of the story. The dissenter notes that the majority “shoe horned” a novel case into the statute by reading the temporal requirement out of the law.

This case is a classic clash between two different judicial philosophies of statutory interpretation. The strict constructionists, like Justice LaVecchia, are guided by the cannon that statutory language should be given its ordinary meaning; “Read and Apply.” A competing philosophy, advocated by Justice Long in this case, is that judges have the authority and leeway to evaluate the situation and to “give effect to the obvious purpose of the Legislature, and to that end, words used may be expanded or limited according to the manifest reason and obvious purpose of the law.” According to this school of thought, “the spirit of the legislative direction prevails over the literal sense of the terms.” In this case, strict construction lost out.

If an individual is injured on public property and statutory immunity prevents liability for a dangerous condition of public property, can a claim be pursued for failing to provide a rescue or medical assistance to the victim? The decedent in Aversano fell backwards off a three hundred-foot cliff while sunbathing at Palisades Interstate Park. Police initially failed to perform a rescue operation because they did not believe the victim could have survived the fall. Only a recovery operation was undertaken. When the police reached the victim three hours later, he was still breathing, had a pulse, was moaning but was unconscious. A local rescue squad was called and was able to rappel down to the victim one-and-a-half hours after arriving at the cliff. This was too late for the victim, who was pronounced dead at the scene.

The claim against the public entity was dismissed by the trial court under N.J.S.A. 59:4-8, Condition of Unimproved Public Property-Immunity, and The Landowner’s Liability Act, N.J.S.A. 2A:42A-3. The appellant conceded on appeal that the allegations regarding the condition of the public property were immunized. The plaintiff continued to press the claim for the defendant’s failure to provide prompt rescue and medical aid. Plaintiffs sought damages for the decedent’s lost chance for survival.

The Appellate Division reversed because two of the three judges believed that the statutory immunities did not have any bearing on the public entity’s responsibility for its negligence in failing to undertake a proper rescue. The dissent believed the defendant was immune under the TCA.

In the defendant’s appeal as of right, the Supreme Court, per curium, upheld the appellate court on the narrow ground that the plaintiff’s claim was not barred by the unimproved land immunity provision of the TCA. The Supreme Court held this allegation regarding an improper rescue was beyond the scope of this immunity.

The Supreme Court did not rule on whether there were other immunities in the TCA, including the discretionary act provisions, that might be relevant to the police officer’s conduct.

Notice of Claim. When parties want to pursue an intentional tort claim against a public employee, a notice of claim must be filed with the governmental entity. Velez v. City of Jersey City, 180 N.J. 284 (2004). Velez claimed that she was the victim of a sexual battery

committed by a co-employee of another department in Jersey City. The plaintiff reported the incident orally to a number of supervisors in city government, but she never filed a written complaint or a notice of claim. Almost two years after the incident, plaintiff filed a lawsuit against the city charging violations of the Law Against Discrimination and negligence. In separate counts of the pleading, she sought damages for battery from the employee of the city.

Jersey City filed a motion for summary judgment seeking dismissal of the common law claims because plaintiff failed to file a notice of claim. It was the defendant’s position that the notice had to be served on the city and the employee. Plaintiff took the position that her oral report to supervisors satisfied the notice requirement against the city and that she was not required to file a notice of claim for the employee’s intentional tort because this conduct is outside the reach of the act and no immunities attach. Plaintiff’s opposition papers cited N.J.S.A.59:3-14 which sets forth:
Nothing in the act shall exonerate a public employee from liability if it is established that the conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

The trial court dismissed the plaintiff’s complaint against the city and its employee due to the plaintiff’s failure to file a tort claims notice. The trial court’s decision to dismiss the tort claim against the city was upheld on appeal because a notice of claim must be in writing and contain the elements required by statute. The Appellate Division reinstated the plaintiff’s claim against the employee because it agreed allegations of intentional misconduct were totally outside the legislative scheme of Title 59 and allowing the defendant to take advantage of the notice provisions would contravene the legislative purpose behind requiring public employees to be legally responsible for intentional misconduct. Velez v City of Jersey City, 358 N.J. Super. 224, 240-241 (App. Div. 2003).

The Justices saw the matter differently and ruled the TCA required a written notice of the claim against the employee had to be filed with the city.

Three sections of the statute led the Court to this conclusion. The Supreme Court did not agree with the proposition that intentional acts were totally outside the parameters of the statute because the introductory definition of injury in N.J.S.A.59:8-8 was broad and all encompassing: “death, injury to a person, or any other injury that a person may suffer that would be actionable if inflicted by a private person.” In addition, the notice provisions in the TCAdo not distinguish between negligent and intentional misconduct. Finally, N.J.S.A. 59:8-3, states:
No action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.

The jurists also felt that the purpose of the notice requirement was to give the public entity ample opportunity to do an investigation, which is also important in a case involving allegations of intentional misconduct. The Court would not require that the written notice be given directly to the culpable employee, only to the governmental entity. This decision is to be applied prospectively, saving the plaintiff’s cause of action.

Statute of Repose

The ten-year statute of repose protects parties involved in the design and construction of “improvements to real property” if the defendant can establish that: (1) the injury sustained by plaintiff resulted from an unsafe condition of an improvement to real property; (2) the defendants were responsible for performing or furnishing the design, planning, surveying, supervision of construction, or construction of the improvement; and (3) the injury occurred more than ten years after the performance or furnishing of the services, N.J.S.A. 2A:14-1.1 The statute, inaptly referred to as the architect’s and contractor’s statute of limitations, was designed to shift responsibility for defects in the condition of property from the designers and builders to the owners after ten years have passed from the date the construction was completed. Manufacturers and sellers of products that may be installed in real property by others cannot invoke the SOR.

In Dziewiecki v. Bakula, Docket No. A-33/34, 2004 N.J. LEXIS 933, plaintiff was seriously injured diving into a pool at a private residence. The lawsuit was instituted against the property owner, the installer of the pool and its manufacturer. The installer was also a franchise dealer for the manufacturer and sold the pool to the previous homeowner. The product liability defendants persuaded the trial court to dismiss the plaintiff’s cause of action on grounds of the SOP because the pool was an improvement to real property and the accident occurred more than ten years after the installation was complete. The Appellate Division reversed. While the appellate panel concluded a pool was an “improvement to real property,” it would not apply the SOR to a manufacturer and seller of product. The appellate court did bar any claims based on the installation or construction of the pool due to the SOR.

The Supreme Court affirmed and stated the SOR does not protect manufacturers and sellers of products and the two-year statute of limitation applies with the discovery doctrine. When an entity like the pool seller and distributor wears “two hats, (undertakes activities covered by the SOR and comes under the product liability statute), and the cause of injury is attributable to both, the responsibility should be allocated between the two.” According to the opinion, “that portion of the liability that relates to activities that fall within the SOR would not after ten years be actionable, and that portion of the liability that derives from a product liability cause of action would be covered by the limitations period set forth in N.J.S.A. 2A:14- 2. This probably means that a defendant that sells and installs a defective product can be legally responsible for design and manufacturing defects but not negligent installation.

Insurance

The plaintiff’s fight for adequate insurance in a personal injury case often overshadows liability and damages as the pre-eminent issue. UIM coverage has become a complicated and protracted front on this battlefield. Does a lawsuit for wrongful death, N.J.S.A. 2A:31- 1, and survival, N.J.S.A. 2A:15-3, trigger separate “per person” limits in liability and UIM policies? Is the UIM carrier entitled to a credit for moneys the plaintiff recovered from product liability defendants? In Vassiliu v. Daimler Chrysler Corporation, 178 N.J. 286 (2004), the Justices answered the first question no and the second question yes.

In Vassiliu, the estate of a victim killed in a motor vehicle accident brought a wrongful death and survival action against the negligent driver and a products liability claim against the manufacturer and seller of decedent’s van. The defendant driver had a liability policy with a single limit of $35,000 and another policy with a split limit of 15 per person and 30 per accident. Decedent had two UIM policies with split limit coverage of 100/300.

Plaintiff settled with the product liability defendants for $215,000. After the negligent driver filed for bankruptcy, plaintiff agreed to limit his recovery to the proceeds of the liability policies allowing him to obtain authorization from the bankruptcy court to proceed with the lawsuit. The jury found the negligent driver to be 100 percent liable and awarded damages in the amount of $175,000 for decedent’s pain and suffering and $1,750,000 for wrongful death. When the trial was over, plaintiff had the $50,000 from the two liability carriers and the $215,000 from the product liability defendants in the bank. Plaintiff’s counsel immediately pursued an additional $200,000 from the UIM carrier and an additional $15,000 from the second liability carrier.

In post-trial motions, plaintiff took the position that she was entitled to $30,000 on the defendant driver’s second liability policy: $15,000 on the survivorship claim and $15,000 on the death claim. In a declaratory judgment action against the UIM carrier, plaintiff sought $100,000 for the survivorship claim and a separate payment of $100,000 for the death claim.

The carriers took the position that the claims triggered only the single per claim limit on each policy and the UIM carriers wanted a set-off for the products liability settlement.

The per person language in the defendant’s split limit liability policy read as follows: “The amount shown on the Declarations Page is the limit of our liability under this part for all damages, including damages for care, loss of services, arising out of bodily injury to one person as a result of any one accident.”

The limit of liability provision in the UIM policy stated that: “The limit of liability shown for each person for UIM Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one accident.”

The UIM policies also contained language regarding the credits the carriers were entitled to. One policy provided: “The amount we agree to pay under this part will be reduced by any amount recoverable from person responsible for an accident.”

The second UIM policy had a similar provision: “The limit of liability [for UIM coverage] shall be reduced by all sums paid because of the bodily injury ... by or on behalf of persons or organizations who may be legally responsible.”

The trial court ruled for the plaintiff requiring the defendant’s second liability carrier to pay a total of $30,000 and the UIM carrier $200,000. The court relied on cases that described “wrongful death actions and survival actions ... as separate and discrete actions affording different damages remedies to different parties, even though they may arise from the identical occurrence.” While the court reduced the UIM carrier’s payment by the amount of the defendant’s liability coverage, it refused to grant a credit for the product liability settlement.

The Appellate Division agreed with the trial court that that the survival and wrongful death actions activated different per person limits, however it ruled that the UIM carrier was entitled to a credit for the products liability settlement. This reduced plaintiff’s recovery from the UIM carrier to zero because the product liability settlement exceeded the carrier’s coverage. The aggrieved liability carrier and the plaintiff filed cross petitions for certification granted by the Supreme Court.

The Justices held that the claims are subject to a single limit of coverage under both policies because the survival and wrongful death actions are derivative of and dependent on the decedent’s injuries, including his death. The holding is in accord with the terms of the policies and is supported with national precedent on the issue. The High Court also held that the UIM carrier was entitled to a set off from the products liability settlement because of the circumstances of the litigation, the nature of UIM coverage and the policy language. The bottom line was no recovery for the estate from the UIM carrier.

In Selective Ins. v. Thomas, 179 N.J. 616 (2004), a husband and wife were seriously injured in a motor vehicle accident caused by a negligent driver with limited liability coverage. The plaintiffs’ vehicle had UIM coverage of 250/500. The couple also had an additional policy on a different van the provided UIM coverage with a CSL of $500,000. The husband and wife were both insured under this policy. Plaintiffs sought recovery from both policies

A declaratory judgment action was filed to deal with the amount of the benefit available and the relative responsibility of the carriers. By the time the case reached the Supreme Court, the sole remaining issue was whether the husband and wife were limited as a couple to a total of $500,000, or each individual was entitled to $500,000. The Appellate Division held that the antistacking statute limited the couple to a total of $500,000 for both. Plaintiffs’ petition for certification was granted.

In a per curiam opinion, the Court quickly disposed of the idea that the resolution of the case involved stacking. “The clear and unmistakable purpose of the anti-stacking amendment’s provisions relating to UIM coverage is to limit a claimant’s UIM recovery to the highest coverage limit available under any one of the policies available to that claimant, irrespective of whether any available policy is primary or excess.” The carrier argued that the term “insured” in the antistacking statute was designed to incorporate both a husband and wife limiting them collectively to the higher policy limit. The Supreme Court did not agree with this position and concluded that the husband and wife were each entitled to the $500,000 CSL in the second policy.

Courthouse Toll

Is a lawsuit for pain and suffering a constitutional right or a privilege subject to conditions? Most judges and trial lawyers believe access to the courts has constitutional protection under the federal and state constitutions.

When it comes to keeping its friends in the property casualty industry happy, these civic concerns do not prevent the Legislature from erecting obstacles for public access to the courts. After all, if you have to pay tolls to travel the roadways, why not the courthouse?

N.J.S.A. 39:6A-4.5 prohibits uninsured drivers from pursuing personal injury lawsuits against other negligent drivers. In Caviglia v. Royal Tours of America, 178 N.J. 460 (2004), an uninsured driver sustained serious physical injuries in an accident with another negligent driver. Defendant obtained summary judgment based on the violation of the statute. In a reconsideration of the order, the trial court held the statute violated the equal protection and due process guarantees of the Federal and State Constitutions when it prohibited the plaintiff from filing a lawsuit due to his failure to possess liability insurance.

The Appellate Division sustained the decision because it concluded there was no real and substantial relationship between the bar against lawsuits for failing to procure liability insurance and any of the legislative goals of tort reform. Judge Sylvia Pressler found that there was no statistical evidence that the insurance industry would re-calculate and lower or stabilize premiums for liability coverage if noninsured drivers were barred from the courthouse. The classification was moreover arbitrary and capricious because the statute allowed uninsured drivers to sue for property damage but not personal injury.

The Supreme Court granted leave to appeal and reversed. The Justices held the statute did not violate the plaintiff’s due process rights “because the statute does not implicate a fundamental right and it is rationally related to, and suitably furthers a legitimate state interest.” In this case, the legitimate state interest is affordable insurance. According to the Court, the statute did not prohibit a cause of action but subjected it to conditions and these are a common feature of state statutes.

No violation of equal protection was found to exist. Uninsured drivers are not a suspect class entitled to heightened protection. “Uninsured drivers are not similarly situated to insured drivers because uninsured drivers are in violation of the law and their counterparts are not.”

The case has little practical effect on the practice of personal injury law. Great numbers of cases will not fall by the wayside. The Pressler opinion was a tremendous morale booster for the trial bar. The onslaught of tort reform has seriously eroded many of plaintiffs’ legal rights of access to the courts. The Supreme Court has basically been a bystander in this process. It has never stood up against the regressive political tide that seeks to close the courthouse door. Judge Pressler drew a line in the sand, drawing applause from the trial bar. The opinion suggested that there are limits to what the legislature can do to deny access to the courts. The Caviglia decision has dashed that hope.

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