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Duty of School Boards Expanded

Decisions require supervision of dismissed students and protection from bullying

By Ronald Grayzel

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This term, the Supreme Court focused on completing the formulation of standards governing the trial of AICRA cases. Four separate opinions dealt with a wide range of issues in automobile litigation and the evidence that is required to support a claim. A major decision explored the admissibility of property-damage photographs on the issue of whether the plaintiff’s injuries were causally related to the accident.

The departing Chief Justice, James Zazzali, authored two major opinions that expanded the legal duty of school boards to supervise the dismissal of students and protect vulnerable pupils from bullying. These opinions were a fitting auld lang syne to a jurist who devoted his judicial life to making the law a positive force in the daily lives of New Jersey citizens. No other opinions expanded the boundaries of tort law.

The term was also noteworthy for the restraint that the Court exercised in refusing to consider major issues in medical malpractice where it was not necessary to do so. Moderation was also the theme in cases involving the interpretations of statutes where the High Court deferred to the legislature and in the appeals, where the justices expressed the importance of upholding jury verdicts as long as all the parties received a fair, impartial trail.

The new Chief Justice, Stuart Rabner, has no known experience in trying civil cases nor has he expressed any philosophy in his public career regarding tort law. No one can predict if the new leader will endeavor to continue the liberal tradition of the court. The next few terms will be a time of transition.

AICRA Trilogy

Under generally accepted principles of tort law, a plaintiff is entitled to compensatory damages for the aggravation of previous existing injuries proximately caused by a defendant’s negligence. It is the plaintiff’s burden to establish the nature and extent to which the defendant’s negligent conduct aggravated theplaintiff’s injuries. O’Brien Cogeneration v. ASCOA, 361 N.J. Super 264, 274-75 (App. Div. 2003). If the plaintiff does not allege an aggravation of a pre-existing condition, plaintiff meets her burden of proof by presenting expert testimony outlining the injuries proximately caused by the defendant’s negligence. During trial, defendant is free to point out the existence of any pre-existing conditions that may explain the plaintiff’s complaints or disabilities. The validity of the plaintiff’s claims and the defendant’s allegations are resolved by the trier of fact. Paxton v. Misiuk, 34 N.J. 453, 460-63 (1961).

Verbal threshold litigation generated its own special rules. If a plaintiff suffered injuries in an automobile accident to a body part that had previously been injured, the plaintiff had to produce an expert report that provided a comparative analysis differentiating the accident injuries from the previous injuries. This requirement applied not only in aggravation cases, but in nonaggravation cases as well. Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993).

Plaintiffs had difficulty producing Polk reports. When the plaintiff’s prior injuries occurred many years ago, it was difficult to obtain the medical records. Plaintiffs were frequently treated by a different physician for the prior condition and subsequent treating physicians were reluctant to engage in detailed analysis of a medical history they knew nothing about. Many physicians with busy practices refused to take the time and effort to review voluminous records of previous treatment and prepare comprehensive reports to meet the legal needs of their patients.

Defendants bombarded plaintiffs with motions for summary judgment, dismissing cases for failing to comply with Polk. After the passage of AICRA, plaintiffs posited that a comparative analysis in nonaggravation cases was no longer required, while defendants argued that Polk remained good law. Plaintiffs believed their position was buttressed by Serrano v. Serrano, 183 N.J. 508 (2005), and DiProspero v. Penn, 183 N.J. 477 (2005), that cast doubt on the viability of verbal threshold decision decided before the passage of AICRA. Some panels of the Appellate Division ruled in favor of the defendants on this issue, Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003); Bennett v. Lugo, 368 N.J. Super. 466 (App. Div. 2004), while others accepted the plaintiffs’ view that Polk should be dispensed with, Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). The Supreme Court granted certification in Davidson to resolve the impasse.

The plaintiff in Davidson v. Slater, 189 N.J. 166 (2007), injured her neck and back in a rear-end motor-vehicle accident while she had a limitation on lawsuit provision in her AICRA policy. In support of the claim, the family doctor certified that plaintiff sustained a permanent disc injury to her back, supported objectively by an MRI finding of a protrusion at L5-S1. The defendant’s orthopedic expert found no objective signs of injury and concluded that plaintiff sustained temporary soft tissue injuries.

Plaintiff had been involved in another motor vehicle accident four years before, sustaining soft tissue injuries to her neck and back.After treating with the same family physician for several months, plaintiff stated that her complaints from the first accident subsided. Plaintiff did not allege aggravation of the 1997 injuries in the 2001 accident. Plaintiff was also involved in a 2003 motor vehicle accident. Although plaintiff claimed not to be injured, medical records noted strains and sprains to the same body parts. The plaintiff’s family physician prepared an expert report that did not contain a comparative analysis of the injuries sustained in this accident with the other accidents.

Defendant won a motion for summary judgment based on the plaintiff’s failure to present a comparative analysis of the injuries in the expert report. The Appellate Division reversed because the panel did not believe that the Polk analysis was required under AICRA.

The Supreme Court affirmed the appellate decision but Justice Jaynee LaVecchia employed a different analysis to reach the same conclusion:

[T]o the extent the parties have focused their attention on a preversus post-AICRA substantive requirement for comparative medical evidence, their arguments are wide off the mark. The need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally. These principles are what determine the need for comparative evidence. The question that we now answer is one that transcends the AICRA verbal threshold setting in which it has arisen.

Justice LaVecchia observed that AICRA did not explicitly require that plaintiffs provide a comparative analysis in a pain and suffering case when the plaintiff does not allege an aggravation of a previous injury. The justices believed that plaintiffs in automobile cases, just like all tort cases, would have to provide a comparative analysis only if they alleged an aggravation of a previous condition. Defendants remain free to challenge plaintiff’s allegation of a causal relationship by presenting evidence of plaintiff’s other injuries and disabilities. The jury will decide whether plaintiff sustained a permanent injury proximately caused by the automobile accident.

The opinion is a lucid analysis of a common problem confronted by the courts in verbal threshold cases. The common law has provided a well thought out blueprint that has guided judges and lawyers on how to try personal injury cases. The Justices did not find any specific requirement in theAICRAstatute to change the rules. Polk was laid to rest. Davidson was remanded to the Appellate Division to assess whether plaintiff’s evidence provided sufficient objective evidence of a permanent injury to defeat a summary judgment motion.

Scars

A plaintiff may vault the verbal threshold if she has sustained a bodily injury that causes significant disfigurement or significant scarring. N.J.S.A. 39:6A-8a. Judges have been reluctant to dismiss cases on summary judgment based on their subjective judgment as to whether a scar or disfigurement meets this requirement. In Soto v. Scaringelli, 189 N.J. 558 (2007), the Supreme Court enunciated both a standard to apply and a procedure to follow in verbal threshold cases for plaintiffs with cosmetic injuries.

According to the unanimous decision authored by Justice Roberto Rivera- Soto, a plaintiff must establish by a preponderance of the evidence “on an objective basis, [that] the disfigurement or scarring substantially impairs or injures the beauty, symmetry or appearance of a person rendering the bearer unsightly, misshapen or imperfect, deforming her in some manner.” Relevant factors include “appearance, coloration, existence and size of the scar as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and other cosmetically important matters.”

To defeat a summary judgment motion, the plaintiff must appear in court on the return date and the trial judge must enter his observations of the scar on the record. Plaintiff must also provide photographs of the injury for later review by the appellate court.

Plaintiff Soto was walking across a parking lot when she was struck by a car, injuring her left shoulder. Plaintiff underwent a diagnostic arthroscopy followed by an open surgical procedure for a rotator cuff repair and decompression of the area beneath the outer extremity of the shoulder blade with a resection of the clavicle. A metal plate and screw was inserted. For reasons never explained on the record, plaintiff did not attempt to meet the threshold by claiming a “permanent” injury to her shoulder. Instead, plaintiff claimed that her four-inch surgical shoulder scar was significant and a “palpable metal object under the scar” constituted a significant disfigurement. Plaintiff obtained a certification from a plastic surgeon stating that the accident had resulted in “significant scarring.”

Defendant moved for summary judgment, contending that the “observable results” from the surgery did not constitute significant scarring or disfigurement. Plaintiff argued that the cosmetic significance of the injury was an issue of fact to be resolved by a jury.

On motion day, the trial judge made personal observations of the plaintiff’s shoulder from three feet away and described the length, width and color of the scar on the record. He reported that it did not have any keloid features, was very thin and not very visible. The judge did not believe that the retained hardware showed deformity or bulges. No photographs were presented. The judge dismissed the case because he did not believe it met the standard of a “significant scar or disfigurement.”

The decision was reversed by the Appellate Division, which concluded from the written record that “the scarring/ disfigurement is not so insubstantial that no rational fact-finder could determine that it does not impair plaintiff’s appearance rendering her unsightly, misshapen, or imperfect.”

The Supreme Court granted defendant’s petition for certification to perform the task of outlining standards for courts to follow in evaluating whether cosmetic injuries meet the verbal threshold. The Court expressly approved of the trial judge’s examination of the plaintiff’s scars in open court. The Justices deferred to the trial judge’s observations and conclusions and criticized the appellate court for substituting its own judgment based on reading a transcript. Justice Rivera-Soto was careful to point out that plaintiff’s counsel agreed that the trial court’s observations “fairly represents her condition.”

Plaintiff’s counsel must be careful about adhering to these standards and procedures to avoid dismissal. Counsel must provide the trial court with specific descriptions of the scarring and deformities caused by the injuries on the record along with supporting medical reports. Any special characteristics or disabilities of the scar must be documented. The plaintiff should also supply certifications specifically delineating why the injuries are cosmetically significant and how they impact the plaintiff’s self-image. If the defendant has developed discovery that minimizes the disability and its impact, this information should be in the appendix to the motion. Quality color photographs must be provided. Cosmetic injuries are the last vestige of injuries under the verbal threshold of plaintiff’s claims on summary judgment. Trial courts will not hesitate to dismiss claims where the plaintiff’s opposition papers do not measure up to these standards.

Displaced Fractures

A plaintiff can vault the threshold if she has a displaced fracture. N.J.S.A. 39:6A-8(a). AICRA does not define the term in its text. In Johnson v. Scaccetti, 2007 WL 2187600 (N.J. July 31, 2007), plaintiff persuaded the trial court and the Appellate Division that chipped teeth constituted a displaced fracture. The only verbal certification plaintiff submitted was one by the treating dentist labeling the chipped teeth as displaced fractures. Before the case went to a jury the trial court held that the chipped teeth constituted fractures involving a complete separation of the bone. Plaintiff’s significant injuries were to the disc in her lumbosacral and cervical spines. She underwent back surgery involving the removal of the disc between L5 and S1, inserting bone from the pelvis into the disc space and installing hardware to fix the vertebrae. Due to the trial court’s ruling, the jury only had to determine the causal relationship of all of the injuries and the amount of damages. The jury was not asked to determine if the disc injuries were permanent and met the requirements of the threshold. The jury returned a verdict of $2.5 million.

The Supreme Court granted defendant’s petition for certification to consider if displaced fractures of the teeth clear the threshold. The High Court also asked the parties to brief “whether the establishment of a displaced fracture should enable a party to present proof on all other injuries regardless of whether they independently met the threshold requirements.” Puso v. Kenyon, 272 N.J. Super. 280, 293 (App. Div. 1994).

Teeth don’t cut it. On behalf of a unanimous court, Justice Barry Albin wrote that “a displaced fracture is the complete separation of a bone.” A tooth is not a bone. The Justices also affirmed the continuing viability of Puso: If you clear the threshold on any injury, a plaintiff is entitled to a damages award for all of her injuries whether or not they meet the threshold.

The Supreme Court refused to order a new trial because the proofs at trial established that the plaintiff sustained a permanent injury. The trial court had reduced the verdict to $1.5 million, partially because the verdict “may very well be one of the highest verdicts, if not the highest verdict ever rendered here in Burlington County.” The appellate court and the Supreme Court restored the jury verdict because it was supported by the evidence.Although the verdict was “generous,” Justice Albin pointed out that “In a close case, the tie must go to the jury”.

TheAICRATrilogy brings to a close a lengthy and tortuous era of litigation regarding the limitation on lawsuit threshold under AICRA. The Supreme Court has articulated a broad array of standards that trial courts can use effectively to handle cases. Hopefully, automobile litigation will now sail on tranquil seas.

Maximum Impact

The temper of the times has dramatically increased a plaintiff’s burden of persuasion in automobile liability cases. Public skepticism regarding personal injury claims, coupled with the requirements of the verbal threshold, has made the plaintiff’s task more difficult. Defense counsel have a keen appreciation of the public mood and the skill to exploit it. One of the most effective ploys is the minimal impact equation: low speed impact plus minimal property damage equals no damages. Defense lawyers stand before juries in opening and closing with blow ups of minor damage to the plaintiff’s vehicle and argue that the accident could not have caused the injuries in question. The line “it was just a fender bender,” delivered with the appropriate intonation, has become a winning mantra for a no cause.

When the property casualty industry first began to play this card, “biomechanical experts” testified that the impact in the particular accident was not capable of generating the forces necessary to cause the plaintiff’s injuries. The expert’s opinions were based on dubious scientific principles and plaintiffs were successful in persuading courts to bar the testimony. In Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002), the Appellate Division put a stop to this gambit by holding that “the decisions brought to our attention have concluded that there is no reliable scientific foundation in bio-mechanical studies for an expert opinion that a low-impact automobile accident cannot cause a herniated lumbar disc or other serious injury.”

This opinion was an obstacle easily surmounted by an imaginative and aggressive defense bar. If you can’t use an expert to promote the defense, do it yourself. After all, the personal injury defense lawyer can deliver a hard right cross more effectively at no additional cost to the carrier. Plaintiff’s lawyers responded to the strategy by objecting to defendants using photographic exhibits of minimal property damage to question the causal relationship and severity of the plaintiff’s injuries. Plaintiffs argued that expert opinions were required to support this contention. This battle played out day-to-day in trial courts throughout the state with varying results. The final resolution came this term in Brenman v. Demello, 191 N.J. 18 (2007).

The plaintiff in Brenman was rearended by defendant in an impact that caused minor bumper damage to the plaintiff’s vehicle, which was depicted in photographs. The nature and extent of the property damage to defendant’s car was disputed and there was no photographic evidence. Liability for the accident was admitted by defendant and the defense counsel focused her fire on undermining the causal relationship of plaintiff’s injuries to the collision.

Plaintiff complained of neck pain to her family physician and he referred her to an orthopedic surgeon. An MRI showed “cervical spondylosis with a ventral osteophytic ridge at C3-4 with spinal cord compression or foraminal encroachment.” A neurosurgeon performed a myelogram that showed an “impingement at C3-4 with a cut off of the two nerve roots at that level.” Two different neurosurgeons recommended surgery. Plaintiff underwent an anterior cervical fusion, which entailed the removal of the discs at C3-4, C4-5 and C5-6

Plaintiff’s experts opined that trauma aggravated the pre-existing condition leading to surgery. According to plaintiff’s expert, the trauma caused the osteophyte in plaintiff’s neck to impact and damage the nerve root. There was no history of pre-existing cervical complaints or disabilities.

Defendant’s medical experts attributed the plaintiff’s problems to a preexisting condition that had nothing to do with the accident. The defense expert believed that surgery was the end result of a natural progression of a degenerative condition.

At trial, the medical experts for both parties testified that the damage to a vehicle had no bearing on whether an accident caused a spinal injury. No engineering experts were offered to support or question a link between the impact, the forces of the collision and the plaintiff’s injuries.

Plaintiff’s counsel moved in limine to preclude introduction of the photographs of showing damage to the plaintiff’s vehicle on the grounds that defendant did not have an expert supporting the connection between the impact and the property damage. Thus, the photographs were not relevant to a determination of medical causation. In the alternative, plaintiff’s counsel sought a limiting instruction advising the jury that the photographs were not relevant to the issue of causal relationship. The trial judge did not believe that expert testimony was required as a foundation for admission of the photographs as they were not being used on the issue of medical causation, but only to provide relevant information on the severity of the impact.

In summation, defense counsel stood before the jury with a blow up of the photo of plaintiff’s car, and delivered a red-hot prejudicial version of the lowimpact formulation:

I opened as a fender bender. I’m closing as a fender bender. That was that was. Mrs. Brenman now wants Stephanie Demell to pay for some close to $400,000 in future lost wages, some $270,000 they’re claiming for future household items, for a surgery, a triple cervical fusion all as a result of that. All as a result of that fender bender.

My client Stephanie Demello is being charged with a lot of things, all this future income, all these household services, all this money, all this injury from a minor fender bender. I opened with it, ladies and gentlemen, and I’ll close with it. This is a fender bender. This is not a lottery.

This summation had it all: the lowimpact formulation, the allegation that plaintiff was spinning the roulette wheel and the thinly veiled suggestion that the money would all come out of the poor defendant’s pocket. No objection was made to defense counsel’s inflammatory comments. After the inevitable no cause, plaintiff sought a new trial based on the admission of the photographs and defense counsel’s argument that they had a bearing on the medical issue.

The three-judge Appellate Division panel reversed and remanded for a new trial on the grounds that the admission of the photographs without a limiting instruction coupled with the defense counsel’s arguments on causal relationship was prejudicial error. Judges Cuff, Parrillo and Gilroy did not believe that “photographs depicting slight vehicular damage support without corroborative expert proof, the inference that the accident could not have caused the serious injury of which a plaintiff complains.” The appellate court was careful not to suggest any rule of general application on property damage photos, other than to prohibit the way they were used in this case in defense counsel’s opening and closing.

The Supreme Court granted defendant’s petition for certification solely to explore whether expert testimony is required as a condition precedent to the admission of photographs of vehicle damage when the cause or extent of a plaintiff’s injures are at issue.

The High Court reversed the Appellate Division and held that expert testimony was not required as a foundation for the admissibility of a photograph of vehicle damage when the photograph is used to show a connection between the property damage and the causation of a plaintiff’s injuries.

Justice Rivera-Soto wrote the opinion, and the rationale for his conclusions has already had an immediate and dramatic impact on the trial of automobile liability cases. Justice Rivera-Soto states categorically that “in most cases there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder.” What is remarkable about this opinion is that it is not based on anything in the record. It is simply a judicial fiat. The medical experts on both sides explicitly rejected the proposition. Defendant had not adduced any evidence to support the contention. The only reference to the allegation is in defense counsel’s opening and closing. This has now become a judicially recognized principle of fact. According to Justice Rivera-Soto: “slight force most often results in slight injury, and great force most often is accompanied by great injury.” This view of the world resides beyond the looking glass in the “heartland of common knowledge.”

The other troubling aspect in this tract will be the lingering perception that lawyers can transgress trial court rulings with impunity. The trial judge wrestled with the issue of the admissibility of the evidence and concluded that defense counsel could use the photographs for purposes of establishing the severity of the impact, not the cause of the injuries. In opening and closing, defense counsel transgressed the trial court’s boundaries without a whistle being blown. One could easily formulate an exhaustive list of court rooms where this would result in severe repercussions for the offending attorney. Defense counsel basically argued a contention she did not prove, could not prove and was prohibited from expressing. According to Justice Rivera- Soto, this is acceptable, because “if evidence is relevant, it is to be admitted unless its probative value is substantially outweighed by its undue prejudicial effect and, once admitted, counsel is permitted to argue to the jury based on that evidence.”

The Supreme Court failed to see the problem that was so clearly demonstrated in the record. Defense counsel did not use the photos to provide guidance on whether trauma can aggravate a preexisting condition. If the Supreme Court thinks that this is what this was about, they are sadly mistaken. This summation demonstrated in the starkest terms what the misuse of the photographs is designed to accomplish. Defense counsel used the exhibits to pronounce that the plaintiff was on a fraudulent mission to take money out of the defendant’s pocket. How many lawyers will read this opinion and use it as a guide for pushing the envelope in opening and closing? Lawyers on both sides of the aisle will interpret this opinion as a justification to make arguments based on the “heartland of common knowledge,” especially the prejudicial ones. Some cases will be tried on the low-impact formula and others on its counterpart: the big bang. Blow up the photos and let it fly.

The real travesty here is that none of the Justices were offended enough by defense counsel’s inflammatory rhetoric to at least recognize the prejudice that flowed from using the photo as a pretext to question the integrity of the plaintiff’s claim and the process they were engaged in. Most defense lawyers have the good sense to couch their arguments carefully. Here, the photos were evidence of the fact that plaintiff was engaged in “lottery.” The case offered the perfect example of the outrageous misuse of the evidence and the majority of Justices missed it.

Not to worry. The opinion comes with a prescription to control the hot lava that will flow from the opinion. After the photographs are admitted, the trial judge “should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff’s injuries resulting from the accident.” There isn’t enough judicial balm in the world to guard against the destructive capabilities of the judicially approved fender bender missiles. Score a big win for the defense and a big loss for the system.

Culpably Uninsured

An owner of an uninsured vehicle is not permitted to collect PIP benefits even if he is injured while a passenger in another person’s vehicle that is insured. N.J.S.A. 39:6A-7b (1). This uninsured person is also barred from seeking compensation for medical expenses in a tort suit against the driver responsible for the accident. N.J.S.A. 39:6A-4.5.

In Dziuba v. Fletcher, 188 N.J. 339 (2007), the defendant sought to prevent a plaintiff who owned an uninsured vehicle from pursuing a lawsuit for injuries sustained while he was a passenger in another driver’s insured vehicle. N.J.S.A. 39:6A-4.5 bars the culpably uninsured plaintiff from bringing the lawsuit “while operating an uninsured automobile.” The Appellate Division in Dzuiba found that the text of the statute allowed an uninsured plaintiff to bring a lawsuit for pain and suffering as long as he was not operating the uninsured vehicle at the time of the accident.

The Supreme Court affirmed the appellate court decision and adopted the reasoning of the Appellate Division.

Repressed Memories

Repressed Memory Syndrome is a new-age concept that explains why an individual may not be consciously aware of traumatic memories for many years, until the person is psychologically competent to cope with the experience. The problem is commonly associated with child abuse. The clinical term for the disorder, “Dissociative Amnesia,” is defined by the DSM as an “inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness.” Some psychiatrists and psychologists believe that patients can “recover” these painful memories with therapeutic techniques or they can be triggered spontaneously by events. Needless to say, the disorder is extremely controversial in the medical and scientific community. Recognized experts in memory science do not recognize the legitimacy of recovering old experiences this way. “Scientific Consensus on Memory Repression and Recovery,” Rutgers Law Review, Winter 1999.

Testimony about “repressed memories” by victims of child-sexual abuse and their therapists has made its way into courtrooms in criminal and civil cases in the face of significant resistance from judges. Alleged victims of abuse and their therapists testify about events that purportedly occurred many years ago, but memory of what occurred was repressed until retrieved by some revelation in therapy or trigger event. Some courts have been willing to accept testimony on repressed memories when offered as a rationale for tolling a statute of limitations. When accounts of repressed memory are presented to support a criminal prosecution or an action for damages, many judges are loath to allow the testimony. The New Jersey Supreme Court has yet to confront the scientific merits of the syndrome under our Rules of Evidence.

The female plaintiff in Phillips v. Gelpe, 190 N.J. 580 (2007), was allegedly abused between the ages of three to eight by a man married to a relative. No one witnessed the events and there was no contemporaneous report of what happened. The plaintiff had a dream at the age of 11 in which she imagined herself as a young adult having sex with the man. This triggered recollections of the abuse that recurred periodically as flashbacks. Over the next two years, plaintiff told a few friends about the incidents. When plaintiff was 14, she learned that her 4-year-old sister was spending nights at defendant’s home and she then told her mother about the abuse for the first time.

At the age of 19, plaintiff filed a lawsuit against the man and his wife, claiming injuries from the sexual abuse. There was no statute of limitation problem. (N.J.S.A. 2A:14-2 tolls a minor’s personal injury action until she reaches the age of 18). Plaintiff presented an expert report from a psychologist with opinions on plaintiff’s emotional injuries caused by the abuse featuring a general description of repressed memories. The report did not contain a diagnosis of the plaintiff with a disorder that caused repressed memory.

Defendant vigorously contested the allegations. He moved for summary judgment on the grounds that plaintiff did not produce an expert opinion that diagnosed plaintiff with dissociative amnesia and because there was no independent evidence to corroborate the abuse. The motion was denied. The defendant obtained an in limine order barring the plaintiff’s psychologist from testifying that plaintiff had a repressed memory disorder because the report did not contain the diagnosis.

The parties walked delicately around the in limine order at trial but repressed memories was the elephant in the courtroom. Defense counsel clearly believed that the order should preclude testimony by the psychologist that would support the credibility of plaintiff’s retrospective recall. Plaintiff’s psychologist testified about plaintiff’s emotional injuries and “about the process of sexual abuse, specifically plaintiff’s dream when she was an eleven-year-old, that she was older and having sex with defendant, which was followed by additional memories or flashbacks of abuse by defendant.” While the expert did not offer a diagnosis of repressed memory, he did “testify about memories generally and explained that anything can act as a recall cue, including dreams.”

The defendants adamantly denied that any acts of abuse ever occurred. Defendants’ psychologist did not find in his examination any signs or symptoms in the plaintiff of emotional disorders caused by sexual abuse. He found that plaintiff’s emotional problems were caused by very difficult life experiences, including an eating disorder, her father’s violent death and her mother’s drug addiction. The psychologist also offered extensive testimony refuting the legitimacy of plaintiff’s recovered memory as inconsistent with the science of how memory works.

Defense counsel repeatedly challenged the propriety of the testimony of the plaintiff and her expert, without success. Defendant also moved for directed verdicts, challenging the validity of testimony based on recovered memory without supporting expert opinion. The court denied the application on grounds that the plaintiff’s account of the incidents and defendant’s denial raised issues of credibility for the jury to decide. Defense counsel persistently pointed out that plaintiff was riding the wave of recovered memories without an appropriate expert opinion to support it. The trial court believed that recalling events in a dream was “not very different from the way that people remember events from the distant past” and that it was “not unusual for people not to remember certain things at one time and then something triggers their memory.” The court did dismiss the case against the female relative due to lack of evidence about any knowledge of the abuse. The jury found for the plaintiff and returned a verdict for $750,000.

On appeal, the Appellate Division reversed the judgment due to the plaintiff’s failure to produce expert testimony to support the validity of plaintiff’s recovery of repressed memory. The case was remanded to the trial court to determine if plaintiff was entitled to a new trial. The appellate judges clearly accepted the defendant’s premise that the plaintiff’s version of the events relied heavily on the proposition that an abuse victim represses the experience and retrieves it spontaneously through recovery. The appellate court exercised its gate-keeping role and reviewed the literature on repressed-memory testimony. The appellate judges recognized that plaintiff’s explanation of her recovery was an example of a controversial scientific/ medical process that was not generally accepted by the medical community. The Appellate Division refused to countenance the result by pretending that the plaintiff’s testimony in the case was a run-of-the-mill account of the past by a plaintiff that a jury could asses on its own without the benefit of expert opinion. The three-judge panel concluded that “The phenomenon of repressing recollection of a traumatic event, and subsequently recovering it may be familiar to or even accepted by parts of the psychological community, but it is far from being familiar to the average juror.”

The Supreme Court granted plaintiff’s petition for certification and restored the jury’s verdict because it agreed with the trial judge’s conclusion that the plaintiff’s testimony could be assessed by a jury without expert testimony:

Plaintiff’s case did not require the production of an expert to explain to the jury how she recalled her past sexual abuse. In this matter, there was no prodding of plaintiff’s memory that necessitated an expert’s explanation. The credibility of her memory was a matter for the finder of fact. Plaintiff was entitled to present her case of ‘I forgot and then remembered’ and take her chances before the jury.

The decision to permit the testimony was simply a product of finding that the witness was competent to testify under N.J. R. Evid. 602 because she had personal knowledge of the matter. As long as the witness in a sexual abuse case is competent, any doubts about the process involved in relaying the facts go to the weight of the testimony, not its admissibility. The key to the justices’ determination that the testimony was acceptable without a supporting expert opinion was that the recovery had not been induced by medication or thirdparty memory stimulation.

The decision by the Supreme Court is very disturbing because it failed to identify the problem raised by the plaintiff’s testimony of her “recovery” or assess its impact on the position of the parties. The plaintiff’s claim hinged on uncorroborated events purportedly occurring when she was a very young child. The defendant’s alleged abuse occurred over a decade earlier without being reported to anyone. The reliability of a child’s eyewitness testimony in a routine case is always subject to legitimate concerns. Here, the witness’s ability to testify about childhood experiences emanates from a dream years later in which the plaintiff imagines having sex with the defendant as an adult. The dream is followed by flashbacks and a report by the plaintiff to her mother induced years later by concern about her younger sister. There isn’t a case in the annals of the common law that would support the admissibility of this testimony in a conventional case. What made this testimony “palatable” to the fact finders was an expert’s opinion that dreams can be recall cues for sexual abuse. The premise for this opinion is the so called science of recalled memory. This expert testimony was delivered without the court performing its basic gate-keeping function of determining whether the testimony was reliable and based on a sound scientific methodology. Rubanick v. Witco Chemical Corporation, 125 N.J. 421 (1991).

The first problem is that the validity of the presentation’s scientific underpinnings was never explored because the plaintiff’s expert did not explicitly offer it as a foundation for his testimony or discuss its specific application to the facts of the case. Why is a dream a trigger for truthful recollection for events that occurred 10 years before when the patient was a young child? The question was never asked or answered because the expert was not supposed to be expressing an opinion on this basis. The defense counsel expended all of his energy punching the air. A cursory review of the medical/scientific authorities cast significant doubt on whether human memory works this way. Even the supportive opinions in the literature are skeptical about the legitimacy of recovery in the context of legal proceedings.

The second problem is the failure to examine the expert’s opinion on why the dream was a legitimate trigger in this specific case. Was this plaintiff’s process of recovery consistent with what the literature says about the process? Does the plaintiff’s account meet the criteria of the DSM?

In this case, the psychologist’s testimony did not pass muster. The plaintiff’s testimony was not competent without supporting expert testimony. The Appellate Division had it right.

This case is very bad precedent. New Jersey has a sexual abuse fee-shifting statute authorizing lawsuits to recover damages for sex abuse. N.J.S.A. 2A:61B-1. The statute of limitations is tolled because of a plaintiff’s mental state, duress or other equitable grounds. There is a prescribed minimal recovery of $10,000 and counsel fees assessed against wrongdoers. The plaintiff in Phillips did not elect to proceed under this statute. However, this case clearly supports the proposition that adult plaintiffs can proceed with claims of child sex abuse under this statute, or the common law, based on a “recovery” of events that elapsed years ago based upon their own description of the trigger that recovered the events without supporting expert testimony.

Child sexual abuse is a traumatic event capable of causing great harm. The civil justice system should provide a remedy. The common law has developed rules of evidence that protect the rights of the parties and the integrity of the process. These rules have stood the test of time. There is no need to dispense with these standards in civil cases involving child abuse. The stigma and the civil and criminal penalties for a party accused of this reprehensible conduct are draconian. Fairness dictates that the accused party have a fair opportunity to meet the allegations and that that the basis of the claim be subjected to the standards of scrutiny that apply to other claims. A defendant should not be saddled with the burden of a substantial judgment based on evidence that does not meet accepted practice standards. This is exactly what happened here.

School’s Out

Pleasantville School had early dismissal at 1:30 p.m. on the afternoon of June 15, 2001. Kids still walked to school in this small town, unless the parent gave contrary instructions to the administration. In Jerkins v. Anderson, 191 N.J. 285 (2007), 9-year-old Joseph, a third grader, left school unsupervised after the early dismissal and was catastrophically injured two-and-a-half hours later when he was struck by a car a few blocks away from school. The injured plaintiff brought an action against the driver of the car and the Board of Education. The plaintiffs claimed that the school system had not advised them of the early dismissal, explaining why he was not met by a parent or older sibling. The plaintiffs argued that school administrators failed to exercise reasonable supervisory care over the student’s safety at dismissal.

The Board of Education produced a great deal of documentation regarding its prior notice of early dismissal to parents, including a handbook, the school calendar and the school newsletter. The parents denied receiving any of the notices. The school’s practice was to have teachers supervise the 500 students while they were leaving the grounds, but the children were allowed to walk home on their own. There was no policy in place that required students to be accompanied by an adult or family member after they left school at the end of the day.

The Board of Education filed a summary judgment motion, claiming it did not have a duty to prevent an offpremises injury hours after the school day had ended. The trial court agreed and dismissed the case. The Appellate Division found a duty and reversed. The appellate court believed it was foreseeable that a nine-year-old child who was not picked up at school at the end of the day by an adult or older sibling would be unsupervised and could be injured in a motor vehicle accident later in the day. Furthermore, school administrators could easily determine whether a young student is in the company of an adult or older sibling. The appellate judges proclaimed that: “the school’s responsibility for its younger student does not end when the dismissal bell rings.” The decision sent shock waves in school districts throughout the state. Administrators were now facing the challenge of designing and implementing dismissals that assured the child arrived home safely with broad liability for accidents happening off school grounds.

The Supreme Court granted the defendant’s petition for certification to determine if this broad duty of care applied to school districts. The concern about the broad potential ramifications of this duty led to the participation of amicus, New Jersey School Boards Association.

In one of Chief Justice Zazzali’s last tort opinions, the High Court ruled that school officials must exercise reasonable supervision over students at dismissal time. Liability arises from N.J.S.A. 59:2-2a of the Tort ClaimsAct, holding a public entity liable for an injury caused by an act or omission of a public employee and from 59:3-1a, imposing responsibility on a public employee for an injury caused by his or her act or omission to the same extent as a private person. The Justices believed that educators have the opportunity and ability to supervise children during dismissal. The case was remanded to the trial court for further proceedings. The Court identified three elements of a school’s standard of care:

- The school must adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed;

- The school must provide adequate notice of that policy to all parents or guardians;

- The school must effectively implement that policy and adhere to parents’ reasonable request regarding dismissal.

The policy has to include detailed information about dismissal procedures. Parental notification must include a description of the supervision provided and the availability of after-school services. The district must also advise parents of the requirement to alert school officials if the child is not to be allowed to walk home alone. School districts are admonished to “faithfully adhere” to a reasonable, published dismissal practice.

The duty is defined by a “standard of reasonableness.” The responsibility does not mandate busing or the banning of walking to and from school. It also does not require districts to formulate plans for crossing guards. The opinion seeks to allay the concerns of the New Jersey School Board Association by advising that “schools are not guarantors of students’ safety with respect to all activities during or after dismissal.”

Relevant to a fact finder’s analysis of liability is the conduct of parents and guardians in reading notices and acting reasonably in dropping off or picking up children.

The chief justice was aware of the Herculean task facing school administrators and he encouraged the Department of Education to formulate guidelines for school districts on dismissal policies.

Bullying

The relentless intimidation of vulnerable children by their peers has always been a terrible reality of adolescent life. In recent years, social scientists and educators have recognized the harm wrought by the behavior and undertaken action to stop it. New Jersey has a law that requires school systems to implement policies to prohibit the behavior and to take strong measures to stop it when it does occur. N.J.S.A. 18 A:37-15. Some administrators take the task seriously, while others just go through the bureaucratic motions of appearing to tackle the problem.

The plaintiff in L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007), was targeted as a “fag and a homo” by other students and tormented and assaulted for years in both middle school and high school. The environment was so bad that the student transferred at the district’s expense to other schools to escape the nightmare. At times, the school administration took vigorous action but other times did not. Meanwhile, the victim twisted in the wind.

Plaintiffs instituted a claim with the Division of Civil Rights against the School Board under the Law Against Discrimination, N.J.S.A. 10:5-1-49, with the Division of Civil Rights. The case was tried before an administrative law judge, alleging that defendant’s failure to take meaningful action caused harm to the plaintiff. The ALJ ruled that there was no cause of action against a school board when one student harasses another student and dismissed the case. The decision was reversed by the Director of the Division of Civil Rights, who held that the District was liable for the harassment, awarding $50,000 in damages for emotional distress to the student and $10,000 to the mother along with counsel fees. The Appellate Division affirmed the decision, but took away the damages award to the mother since she was not entitled to damages for her own emotional injury under the LAD. The Supreme Court granted the Board of Education’s petition for certification.

The Supreme Court ruled that the LAD “permits a cause of action against a school district for student on student harassment based on an individual’s perceived sexual orientation, if the school district’s failure to reasonably address that harassment has the effect of denying to that student any of a school’s accommodations, advantages, facilities or privileges.” According to Chief Justice Zazzali, “the school district may be found liable under the LAD for student on student sexual orientation harassment that creates a hostile educational environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment.”

The decision does not authorize legal actions for schoolyard taunts or banter. The plaintiff must establish discriminatory misconduct that would not have occurred but for the student’s protected characteristic; that a reasonable

student of the same age, maturity level and protected characteristic would consider sufficiently severe or pervasive to create a hostile school environment.

student of the same age, maturity level and protected characteristic would consider sufficiently severe or pervasive to create a hostile school environment.

The decision does not appear to authorize causes of action under the LAD where the bullying is not directed toward a member of a class protected by the statute. The LAD protects against discrimination on the basis of race, creed, color, national origin, gender or disability. Classic bullying against the downtrodden may give rise to a cause of action under the Torts Claims Act, but the right to recovery will be subject to the Title 59 injury threshold.

Let It Be

Liquori v. Elmann, 191 N.J. 527 (2007), had the earmarks of a medical malpractice blockbuster when the appeal reached the New Jersey Supreme Court. There were weighty issues for the Justices to deal with. Would the Supreme Court construct a cause of action against physicians for fraud based upon a surgeon’s alleged failure to disclose to family members that an injury to the patient had been caused by a procedure performed by another physician? Should a physician who holds himself out as a surgeon be held to the standard of care of a specialist, even though he lacks the credentials to be one? Are there circumstances when physicians should obtain informed consent from family members, even though the patient faces a medical emergency? Should an expert’s testimony be limited to his pretrial report and deposition testimony regardless of the trial judge’s efforts to minimize the harm caused by the change in the testimony? This decision was sure to shake the malpractice bar from the summer doldrums.

Liquori is a wrongful death action involving an elderly woman who died of complications from the insertion of a chest tube that perforated the patient’s heart. The chest tube and its clamp were required for a lung that collapsed after a heart bypass-operation.After the patient underwent corrective surgery to patch the hole in her heart, she had a relentless downhill course leading to her death. The assistant surgeon who installed the chest tube had not completed his surgical residency and was not board certified. He had not obtained consent from the family for the procedure even though the patient’s daughter was in the hospital at the time. The decedent’s children contended that the primary cardiac surgeon withheld the fact that the assistant surgeon had perforated their mother’s heart when the chest tube was inserted.

Plaintiff’s medical malpractice case against the assistant surgeon alleged a deviation with the insertion of the chest tube, and for failure to provide informed consent. The trial judge dismissed the informed consent claim against the assistant surgeon at the close of the evidence on grounds that it was undisputed that the physician was dealing with a medical emergency and consent was not required. Over objection of plaintiff’s counsel, the trial judge charged the jury that the assistant surgeon should be held to the standard of care of a general physician and not a specialist.

The plaintiff’s complaint against the primary cardiac surgeon alleged fraud in failing to disclose that the chest tube insertion by the assistant surgeon had caused a hole in the heart. Before trial, the trial judge dismissed the fraud claim and transposed it into a claim against the cardiac surgeon for lack of informed consent. Decedent’s family testified that the cardiac surgeon told them that their mother had a small bleed and it would be easily fixed. The surgeon testified that he told them what the problem was and how he was going to try to fix it.

The plaintiff’s expert testified at trial that the assistant surgeon committed malpractice because he inserted the tube or the clamp too deeply into the patient’s chest cavity toward the heart, perforating the organ. The defense expert testified that the physician had performed the insertion according to generally accepted standards of medicine and that the injury to the heart was a recognized complication of the procedure enhanced in this case by a thick layer of tissue over the patient’s rib cage. The defense expert specifically stated that “a physician can follow the standard of care with inserting a chest tube and still have a complication of an injury to the heart.” The expert testified in his discovery deposition that he did not know if the tube or the clamp caused the injury. However, at trial he changed his testimony and pinpointed the clamp as a cause of the injury. The court allowed the expert to present his modified opinion over objection of plaintiff’s counsel. At the close of evidence, the trial judge granted plaintiff’s application for a directed verdict on causation since all of the experts agreed that the complications of the chest tube insertion led to the patient’s death.

The jury found that the assistant surgeon did not deviate from the accepted standard of medical practice in the insertion of the chest tube and that the cardiac surgeon did not fail to obtain the informed consent of the family after the patient’s heart was damaged before the corrective surgery.

The plaintiff pursued 13 grounds of appeal. Four issues engaged the appellate court’s attention:

1) The dismissal of the fraud claim against the primary cardiac surgeon;

2) The change in the defense expert’s testimony at trial;

3) The failure to charge the jury that the assistant surgeon was held to the standard of care of a specialist because he held himself out as a surgeon; and

4) Whether a physician should get informed consent even if there is an emergency if it is feasible to do so.

The three appellate judges would not recognize a new cause of action for fraud against the primary cardiac surgeon and upheld the trial court’s decision to reformulate the claim as lack of informed consent. There was sufficient evidence in the record to support the jury’s decision that the surgeon gave the family the appropriate information. While the judges believed that the defense lawyer should have alerted plaintiff’s counsel to the change in the expert’s testimony before trial, the new opinion did not significantly impact or prejudice the plaintiff’s case. The court agreed that the assistant surgeon did not have to obtain informed consent because there was no dispute that the patient was in the midst of a medical emergency. Two judges believed the charge was appropriate but a dissenting judge believed that the jury should have been instructed that the assistant surgeon should have been judged as a specialist. Due to the dissent in the Appellate Division, the plaintiff’s appeal on the jury charge went up to the Supreme Court. Additionally, the Justices granted plaintiff’s petition for certification on the other three significant issues raised by plaintiff on appeal. Everyone expected a decision that would make the earth rumble. It didn’t happen. It fizzled. All the malpractice bar got was a well-reasoned, dispassionate affirmation of the lower courts’ decision to sustain the jury verdict. Instead of a banner headline in the Law Journal, it became a routine story tucked away inside the paper.

The unanimous decision affirming the jury verdict was Justice Helen Hoens’ maiden tort voyage and she evaluated the case from the perspective of a trial judge with extensive trial experience. What the Justice saw in the voluminous trial record was a vigorous battle between the parties over issues that were well defined and presented by counsel, followed by a charge that adequately delivered the applicable principles of law to the jury. To Justice Hoens, reversible error is a conclusion of last resort and the allegations of error in this case didn’t meet the benchmark.

While Justice Hoens acknowledged that the jury instruction defined the physician who inserted the chest tube as a general practitioner, she believed the trial judge delivered a “hybrid charge,” identifying the defendant as an assistant surgeon and advising the jury that ‘to decide this case properly, you must know the standard of care applicable to an assistant cardiac surgeon.” The High Court also noted that the parties basically agreed that the same standard of care applied to every physician who inserted a chest tube regardless of his background. The Court did not see any harm in the charge and declined to tackle the philosophical question of whether a physician should be held to the standard of care of a specialist based on how the physician represents himself to the patient.

The justices also refused the appellant’s invitation to construct a duty to secure informed consent in a medical emergency unless it is “truly impossible.” Again, the record revealed that the patient’s collapsed lung was an emergency that the assistant surgeon had to address it as quickly as possible. The Justices did not believe the record in this case presented a compelling reason to delineate circumstances under which a physician should obtain consent even if there is an emergency.

The justices were also unwilling to tread into uncharted waters and recognize a claim for post-surgical fraud based on the conversations between the primary cardiac surgeon and the patient’s family. The justices agreed with the trial judge that the fundamental contention against the cardiac surgeon was lack of informed consent and recognized that the jury accepted the surgeon’s testimony that he relayed the necessary information about what happened to the family. If the jury had believed the family’s testimony to the contrary, they would have found for the plaintiff against the cardiac surgeon on informed consent.

While the Supreme Court roundly criticized defense counsel’s failure to advise the plaintiff’s lawyer of the change in the defense expert’s testimony, it did not believe that the change had any adverse impact on the plaintiff at trial. The change actually moved the defense expert’s opinion closer to the testimony of the plaintiff’s expert. This resulted in a directed verdict on proximate cause.

There is no such thing as an errorfree trial. Appellate judges should always focus on whether the alleged mistakes had the capability of prejudicing the outcome and causing a miscarriage of justice. If Liquori stands for the proposition that appellate courts should make every effort to preserve jury verdicts unless an error caused a substantial miscarriage of justice, it is a valuable precedent indeed.

Don’t Mess AroundWith Pharma

The traditional rule for resolving conflict of laws problems was simple and straightforward, lex loci delicti: you applied the law of the place where the tort occurred. While the traditional approach provided certainty and consistency, our appellate courts found the approach rigid with the capability of producing unjust results.

This led to the evolution of the “governmental interest approach” to resolve choice of law questions. Melik v. Sarahson, 49 N.J. 226 (1967). This analysis is a two-step procedure. First, the court must determine if there is a conflict between the laws of different states. If there is, the court must determine which state has the greatest interest in the resolution of the issue. This is accomplished by identifying the governmental policies underlying each state’s law and determining whether the policies are affected by each state’s contacts to the litigation and to the parties.

In the hands of a disciplined and dispassionate jurist, the doctrine can be a useful guide in selecting the correct state’s law to apply to a case. In Melik v. Sarahson, two New Jersey residents traveled by car to Ohio where the driver lost control of the car and injured the passenger. In the New Jersey lawsuit brought by the injured passenger, the driver sought to invoke Ohio’s guest statute which prohibited actions by a passenger against a host-driver for ordinary negligence. The Supreme Court applied New Jersey law and allowed the suit to go forward because it involved this state’s residents, and a local liability policy in a forum that did not have a guest statute. In Deemer v. Silk City Textile Machinery Co, 193 N.J. Super.643 (App. Div. 1984), a North Carolina worker was killed in an industrial accident in his home state on a machine which was manufactured in New Jersey. At the time of the suit, the New Jersey manufacturer was out of business and its assets had been acquired by a company domiciled in North Carolina. The wrongful death action was brought here and our appellate court held that North Carolina law would apply because New Jersey had no interest in protecting the legal rights of an out-of-state resident. The decision makers in both cases applied the law to the facts without rationalizing a result based on the ideological preferences of the decision maker.

The problem with the governmental interest test is that it is a malleable concept easily shaped by activist judges to decide cases based on their world view and outside the rational boundaries of the law. Any governmental interest can be paramount if you want it to be.

An example of this activism was Gantes v. Kason Corp., 145 N.J. 478 (1996), where our courts rolled out the red carpet to an out-of-state plaintiff desperately in need of a friendly forum. The decedent was a Georgia resident killed in a local factory by an old industrial machine manufactured by a New Jersey company. The wrongful death action was barred in Georgia by a 10- year statute of repose for products liability actions. Plaintiff brought her lawsuit in the friendly environ of New Jersey in the hopes of avoiding the harsh impact of the Georgia rule. There is no statute of repose for manufacturers here. The trial judge in New Jersey followed a traditional conflict analysis, recognizing the paramount interest of Georgia, and dismissed the action on summary judgment and the decision was affirmed on appeal.

The New Jersey Supreme Court reversed and held that New Jersey law should apply under the “governmentalinterest standard” because this state has a “commitment to protection of the public against the manufacture and distribution of unsafe products” and a strong stake in deterrence of such practices. The Court also dismissed defendant’s arguments that it was entitled to dismissal on the doctrine of forum nonconveniens because a transfer of venue would result in the dismissal of the lawsuit. The Court totally disregarded the fact that the product and the witnesses were located in a distant state. Giving a plaintiff a fair shot at pursuing a products liability case in our courts is a noble gesture, but it is not a result that flows from a reasonable application of conflict of law principles to these facts. To a casual reader, the opinion appears well reasoned and the sentiments expressed warm the cockles of the reader’s heart. The problem with the opinion is that it elevates the principle that the ends justifies the means. This methodology can cut both ways.

An alarmed and silent witness to Gantes was the powerful pharmaceutical industry. New Jersey has become a destination of choice for mass tort cases against this state’s drug companies and the industry lawyers were not enamored with the idea of trying the cases under New Jersey’s more liberal products liability standards. Gantes flew under Big Pharma’s radar but Rowe v. Hoffmann- La Roche Inc., 189 N.J. 615 (2007) did not.

Robert Rowe was a lifelong Michigan resident who attempted suicide after ingestingAccutane prescribed by his local physician. The legal issue was whether the FDA-approved label provided by New Jersey manufacturer, Hoffmann-La Roche Inc, adequately warned about the risk of suicide. The products liability law suit was not viable in the plaintiff’s home state because a Michigan statute provided that a label approved by the FDAis adequate as a matter of law. Rowe came to New Jersey to file his products liability lawsuit because here an FDA stamp of approval only establishes a rebuttable presumption that the warning is adequate. N.J.S.A. 2A:58C-4.

Big Pharma was armed and ready. Their lawyers filed a motion for summary judgment in Rowe, arguing that Michigan law applied and the New Jersey case should be dismissed. The trial judge, relying on Deemer, applied Michigan law and dismissed the case.

The Appellate Division reversed. The two-judge majority felt obligated to follow the High Court’s prescription in Gantes favoring foreign victims over local manufacturers. The two appellate judges noted that all of the manufacturer’s decision-making and activities regarding the product and its label occurred here, and concluded that New Jersey had a strong paramount interest in deterring the manufacture of unsafe products. The dissenter “was unable to perceive what governmental interest New Jersey had in seeking to assure compensation for a Michigan resident when the Michigan Legislature has determined that compensation is not available.” The dissenter judicially noticed that New Jersey was the venue for seven pending mass tort actions against pharmaceuticals and expressed his own view that New Jersey should not become the “asylum” for out-ofstate litigants. The dissent propelled an appeal to the state’s highest court.

The appellants got a huge break when two of the Court’s liberals, Justices Zazzali and Albin, did not participate in the appeal. Judges Lefelt and Stern were brought up from the Appellate Division to take their place. The pharmaceutical industry brought in heavy firepower as amicus, including the Pharmaceutical Research and Manufacturers of America, Product Liability Advisory Council Inc. and the Healthcare Institute of New Jersey. The plaintiff was joined at the OK Corral by a single gun: N.J. ATLA.

The drug industry took the gloves off and eschewed the traditionally polite philosophical approach to arguing the conflict of laws. After all, if the choice of law is a matter of preference, you might as well lay your cards on the table. The influential amicus persuaded the High Court to judicially notice that “since 1996, over ninety percent of mass tort claims against New Jersey pharmaceutical companies in New Jersey courts have been brought by non- New Jersey residents”. What was the case about to the amicus and their lawyers? The gates opened by Gantes choice were a burden on the state’s drug industry and the border should be closed. The industry concern was its mass tort liability and it told the court in no uncertain terms that this case was a vehicle to do something about it.

In a 4-2 decision, the Supreme Court reversed. The decision was authored by Honorable S. LeFelt, one of the Appellate Division judges. The text of the opinion went right to the heart of the matter by recognizing the existence of the large number of mass tort suits pending in New Jersey against local pharmaceutical companies. Next came a clear articulation of the judicial point of view. These jurists did not believe that the object of New Jersey’s product liability statute was to encourage tort recoveries by plaintiffs, but rather to limit the liability of the drug manufacturers. This angle of vision made New Jersey product liability statute “substantially congruent” to Michigan law. With an eye on the mass tort cases, this majority’s mantra was to limit recoveries against drug manufacturers. Then came the fiction.

Michigan interests were more important because its law was designed to make prescription drugs more available to its residents. “To allow a lifelong Michigan resident who received a FDA-approved drug in Michigan and alleges injuries sustained inMichigan to by-pass his own state’s law and obtain compensation for his injuries in this State’s courts completely undercuts Michigan’s interests, while overvaluing our true interest in this litigation.” The opinion makes a half-hearted attempt to distinguish Gantes and rolls right over it without overruling it. Since you simply cannot rationalize this opinion with the precedent, why even try? Perhaps Gantes is still good law against manufacturers of industrial machines.

The flawed methodology in Rowe was created by Gantes. It is judges reaching a result based on their own policy preferences. One set of judges wants to provide a friendly forum for injured plaintiffs against New Jersey manufacturers in the name of product safety and another set of judges don’t want to construct an “asylum” for lawsuits against New Jersey drug companies. If the Rowe majority wanted to restore order for the right reasons, it could have simply followed the disciplined approach employed by the Appellate Division in Deemer. It’s a Michigan cause of action regulated by the Michigan legislature. Beginning and end of story. Instead, Rowe went off on tangents, singing a refrain about the governmental interests of the pharmaceutical industry as articulated by amicus.

If Jim Croce wrote the lyrics for this opinion, it would go like this: You don’t tug on Superman’s cape You don’t spit into the wind You don’t pull the mask off the old Lone Ranger And you don’t mess around with Big Pharma

One can only hope that future conflict- of-law decisions will not be an ideological battleground between proplaintiff judges and pro-industry judges. Our courts have the ability to apply the governmental interest test in a traditional, disciplined manner.

Fireman’s Rule

Under the common law, a fireman or police officer could not pursue a negligence action against a property owner for injuries sustained while responding to an emergency at the defendant’s premises. This immunity originally applied only to acts of negligence that created the need for the responders’ services. Property owners could not be held accountable to the responders for negligently causing the fire or the crime that caused the injury. Krauth v. Geller, 31 N.J. 270 (1960). Blanket immunity was later conferred even for dangers on the premises that had nothing to do with the reason why the responder was there. Rosa v. Dunkin Donuts, 122 N.J. 66 (1991) (powdered white sugar on the floor).

In 1993, the Legislature abrogated the Fireman’s Rule. N.J.S.A.2A:62 A- 21. The poorly written statute provided that:

In addition to any other right of action or recovery otherwise available under law, whenever any law enforcement officer, firefighter, or member of a duly incorporated first aid, emergency, ambulance or rescue squad association suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is directly or indirectly the result of the neglect, willful omission or willful or culpable conduct of any person or entity … the law enforcement officer, firefighter, or first aid, emergency, ambulance or rescue squad member suffering that injury or disease, or in the case of death, a representative of that law enforcement officer, firefight or first aid, emergency, ambulance or rescue squad member’s estate, may seek recovery and damages from the person or entity whose neglect, willful omission, or willful or culpable conduct resulted in that injury, disease or death.

The statute did not contain a coherent statement of legislative purpose.

After police and firemen began filing personal injury lawsuits against property owners, defendants argued that the statute only did away with immunity for dangers of property that were not related to the reason for the responder coming to the premises. According to defendants, responders could not recover when the allegation was that negligence caused the emergency. Plaintiffs argued that the “clear” language of the statute abolished the Fireman’s Rule completely. In Kelly v. Ely, 336 N.J. Super. 354 (App. Div. 2001), the defendant’s restrictive interpretation prevailed, but two other appellate panels found that the statute did away with the Fireman’s Rule altogether. Ruiz v. Mero, 385 N.J. Super. 382 (2006); Foster v. Newark Housing Auth., 389 N.J. Super. 60 (2006).

The plaintiff in Ruiz v. Mero, 189 N.J. 525 (2007), was a police officer injured breaking up a brawl at defendant’s tavern. Plaintiff sought compensatory damages from the tavern owner because he failed to provide reasonable security. Defendant filed a motion to dismiss for failure to state a claim on which relief could be granted on the grounds that the action was still barred by the Fireman’s Rule. While N.J.S.A. 2A: 62 A-21 was in effect on the date of the incident, defendant persuaded the trial judge that immunity remained in place where the plaintiff was contending that the defendant was negligent for causing the emergency. Plaintiff appealed and the Appellate Division concluded that the statute eliminated immunity across the board. Defendant obtained certification to have the High Court rule whether this immunity was still in effect.

The Supreme Court resolved the issue very simply. The Justices read the text of the statute and found that it abolished the common-law immunity completely. The Court did not find any language in the statute suggesting the subtle distinctions advanced by defendant. No more Fireman’s Rule. Plaintiff’s case was remanded to the Law Division.

Offer of Judgment

Under R. 4:58-2, a plaintiff making a timely offer of judgment in a tort case rejected by the defendant is entitled to an award of counsel fees and costs and interest if the verdict exceeds the offer by 20 percent. The Rule is mandatory on the court and it has no discretion to reject the application. This rule is a potent weapon.

The plaintiff in Wiese v. Dedhia, 188 N.J. 587 (2006), filed an automobile liability case against defendant, seeking damages for his injuries. His wife pursued a loss of consortium claim. The plaintiffs submitted a joint offer of judgment on defendant before trial of $75,000. Plaintiff obtained a net award of over $79,000, and his wife obtained over $20,000 for the consortium award.

The plaintiff claimed that the total award of $99,000 exceeded the joint offer of judgment by 20 percent, thus warranting an award of counsel fees, costs and interest. The trial judge denied the application because the plaintiffs had proffered a joint offer instead of breaking it down on an individual basis. The plaintiff appealed and theAppellate Division approved the use of joint Offers of Judgment in these circumstances and instructed the trial court to enter an award.

After the remand, plaintiffs obtained counsel fees, costs and prejudgment interest. The defendant appealed again, challenging the amount of the award by the court, but it was affirmed on appeal.

Plaintiff sought a supplemental award of counsel fees and costs for the second appeal in a motion addressed to the Appellate Division, which was denied. The court apparently relied on R. 2:11-4 that vests discretion in the appellate court to grant or deny applications for counsel fees on appeal. Plaintiff’s petition for certification was granted to consider plaintiff’s right to an award of counsel fees and costs for the second appeal.

The Supreme Court reversed holding that the Offer of Judgment Rule trumps the other rule and that an award of attorney’s fees and costs for appeals was mandatory.

Fee Shifting

There are a number of statutes that provide a successful litigant with counsel fees. In R.M. v. Supreme Court of N.J., 190 N.J. 1 (2007), the Supreme Court outlined the criteria a court should employ when considering fee applications.

R.M. brought a civil rights action under 42 U.S.C. 1983, against the New Jersey Supreme Court and others seeking to strike down R. 1:20-9, which required that grievances against attorneys remain confidential until a formal complaint was filed. R.M. argued that the rule violated the free speech guarantees of the United States and New Jersey Constitutions. While cross motions for summary judgment were pending in the Law Division, the Supreme Court directly certified the action and ruled in favor of the plaintiff, holding that the grievant may publicly disclose the grievance, describe what it was about and indicate the result. The federal civil rights act provides for counsel fees. 42 U.S.C. 1988(b).

After the victory, R.M. filed applications in both the Law Division and the Supreme Court for counsel fees. Plaintiff submitted a certification before the trial court claiming compensation for 130.8 hours of work at an hourly rate of $394, ingeniously based on the “mean of the hourly rates for partners in New Jersey law firms surveyed by the New Jersey Law Journal.” The computation was 130.8 times $394.00 equals $51,535.20. In the application to the Supreme Court the lawyers sought compensation for 166.57 hours at $394 per hour for a total of $65,822.12. The total fees sought were $117,357.32, and did not include a request for enhancement. The attorney general opposed the application, arguing that the hours claimed and the compensation sought was excessive.

The attorney general. proposed a rate of $250 an hour for 100 hours of work in the Supreme Court and $250 hour for 75 hours of work in the Law Division. The Supreme Court adopted the attorney general’s position and awarded $25,000 in fees. The Law Division awarded $19,726 in fees without entering its reasons for the decision on the record.

An applicant is eligible for counsel fees if she is a “prevailing party” on any significant issue in the litigation that provides some benefit to the party. The amount of the fees awarded is calculated by using the Loadstar Computation, which is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” To make the assessment the court asks two questions:

1) Are the number of hours of work claimed reasonable?

2) Is the hourly rate sought reasonable?

The hours may include the time spent in filing the application for fees and any appeals that flow from the order. A reasonable fee “is to be calculated according to the prevailing market rates in the relevant community”

The Loadstar may be increased or reduced based on an evaluation of 12 factors:

1) The time and labor required to litigate the suit;

2) The novelty and difficulty of the questions presented by the lawsuit;

3) The skill required properly to perform the legal service;

4) The preclusion of other employment opportunities for the attorney due to the attorney’s acceptance of the case;

5) The customary fee for such services;

6) Whether the fee is fixed or contingent;

7) Time limitations imposed by the client or the circumstances;

8) The amount in controversy involved and the results obtained;

9) The experience, reputation and ability of the attorney;

10) The undesirability of the case;

11) The nature and length of the attorney’s professional relationship with the client; and

12) Awards in similar case.

The attorney’s certification must specifically lay out in detail the work performed and the time it took to accomplish each task. Attorneys should be mindful that contemporaneous time records provide the raw data for an effective presentation.

A trial court must “analyze the relevant factors in determining an award and then state its reasons on the record.” Because the trial court failed to do this, the case was remanded for the determination of the counsel fee award. The reasoning behind the Justices’ decision was not spelled out in the opinion.

This decision fails to give the bar guidance on howthemarket value of attorney’s fees is determined by a court. Many attorneys obtain certifications from other experienced counsel that express opinions on what a reasonable fee is in the legal community. Other recent court opinions that award fees may assist the court. The Law Journal’s statistic on median partner rates was an objective measure the court could have used.Why did the Court reject it? Where did the attorney general’s $250 figure come from? Why is $250 an hour reasonable and $394 unreasonable? None of these questionswas answered.Thismay be left for a future opinion

The plaintiff did not seek “enhancement” of his attorney fee even though the venture was risky and the odds of success long. Perhaps the moving party was shrewd enough not to push his luck against this particular defendant.

Tort a laMode

The Justices have handcrafted a new cause of action allowing a worker to recover money damages from his employer for injuries sustained in the course of his employment where the employer knows that death or injury is substantially certain to result. Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002). The workers’ compensation bar is not an obstacle to recovery for “intentional” misconduct in these situations. Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003); Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003).

The new lawsuits also unleashed declaratory judgment actions asking courts to determine if defendants were entitled to coverage from their employer liability policies. Every employer is required by statute to carry employer liability coverage, providing worker’s compensation benefits in “Part One,” and defense and indemnity for lawsuits in “Part Two.” The classic example of a lawsuit covered by “Part Two” is a legal action brought by a minor against her employer, which is a statutory exception to the workers’ compensation bar. Variety Farms v. New Jersey Mfrs. Ins. Co., 172 N.J. Super. 10 (App. Div. 1980).

Employers also receive indemnity and defense for legal actions brought under the Law Against Discrimination. Schmidt v. Smith, 155 N.J. 44 (1998).

Every employer liability policy contains language excluding coverage for claims caused by “bodily injury intentionally caused or aggravated by you.” After the Supreme Court first gave workers the limited right to sue their employers for intentionally exposing them to asbestos and deceiving them about the harm in Millison v. E.I. du Pont deNemours&Co., 101 N.J. 161 (1985), a highly regarded panel in the Appellate Division held that employers were not entitled to protection from the employer’s liability policies because of the exclusion for intentionally caused injuries. New Jersey Mfrs. Ins. Co. v Joseph Oat Corp., 287 N.J. Super. 190 (App. Div. 1995). This rock-hard precedent stood unchallenged for 10 years. The post-Laidlow employers had the daunting task of persuading courts to execute mass reformation of policies to accommodate their new liabilities.

The courts were more than willing to help. In Charles Beseler Company v. O’Gorman & Young Inc., 380 N.J. Super. 193 (App. Div. 2005), and New Jersey Manufacturers Insurance Company v. Delta Plastics Corporation, 308 N.J. Super. 532 (App. Div. 2005), the appellate courts required the carriers to defend and indemnify employers who were defending lawsuits from workers who claimed they had been injured by “intentional conduct” that had a “substantial certainty” of causing injury despite the exclusions in the policies for intentional misconduct. The appellate courts leaped over JosephOat by limiting the exclusion to the narrow circumstanceswhere the employer had a subjective intent to injure the worker. The appellate judges justified this artificial construct by calling the simple policy language disclaimers ambiguous and contrary to the reasonable expectations of the insureds.

In two per curiam opinions, the Supreme Court upheld the appellate division rulings, Charles Beseler Co. v. O’Gorman & Young, Inc, 188 N.J. 542 (2006); N.J.Mfrs. Ins Co. v. Delta Plastics Corp., 188 N.J. 582 (2006). Bing, bang, boom, there’s coverage. Stay tuned for the next chapter. A tortfeasor who engages in intentional misconduct is also liable for punitive damages.Who is going to pay to defend and indemnify these claims?

The End

The statute of repose,N.J.S.A. 2A:14- 1.1, absolutely prohibits a lawsuit for damages against contractors, builders, planners and designers for any deficiency in the “design, planning surveying, supervision or construction of an improvement to real property” once 10 years has elapsed after the services have been provided. The immunity applies to both personal injury actions and contract actions. There are no exceptions. The statute of repose is not a statute of limitations but a legislative device to prevent a cause of action from arising in the first instance. The calculation of the period is simple.You determine that date of the defendant’s last service, add 10, and draw a line in the sand.

In Daidone v. Buterick Bulkheading, 191 N.J. 557 (2007), plaintiff brought a lawsuit for defective construction against an architect and a contractor more than 10 years after they completed their work but less than a decade after the certificate of occupancy for the premises was issued. The plaintiff argued that looking to the date that the certificate of occupancy was issued would provide a uniform date against everyone involved in the project and would provide maximum protection for consumers.

The Supreme Court said no. If your date of last service is before the certificate of occupancy is issued or after, the 10 years begins to run on the date the last service was furnished.

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