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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

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 case-specific 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, multi-paragraph 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 multi-vehicle 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-the-counter 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. A follow-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 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 preexisting 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:

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:

here 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 facie 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 un-filed 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.

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