Litigation

The lawyer representing the plaintiff Carolyn Repko (“Repko”) filed a lawsuit in her name in September 2018, not knowing that she had died nine months previously.  He filed suit against the defendant Our Lady of Lourdes Medical Center, Inc. (“Lourdes”) due to plaintiff’s fall which had occurred in September 2016.  The issue in Repko v. Our Lady of Lourdes Medical Center, 2020 N.J. Super. LEXIS 204 (App. Div. August 13, 2020) was whether the complaint was subject to dismissal because the complaint was filed by a dead person.

This claim stemmed from a fall suffered by plaintiff Repko, when she fell on the front steps at Lourdes, breaking her nose and receiving a cut over her eye, as well as several other injuries, in September 2016.  Three days later, she retained counsel.

She died from unrelated causes in 2017, fifteen months after her fall.  Repko’s counsel filed a complaint in her name in September 2018, just before the statute of limitations was to run, not knowing that she had died nine months earlier.  After Repko’s counsel gave the defendant an extension of time to file an Answer, the Answer was filed in November 2018 and discovery was served.  When Repko did not respond to her attorney’s letters, her attorney searched public records in February 2019 and found out she had died over a year before.

Repko’s counsel wrote to Repko’s son in April 2019 and eventually obtained an agreement to continue the case.  In September 2019, three years after the accident and 21 months after Repko’s death, her son sent Repko’s attorney a death certificate and Letters Testamentary.  Repko’s will had been admitted to probate in March 2018 and, it was at that time, that Letters Testamentary were issued to her son. 

In September 2019, Plaintiff’s counsel advised defendant Lourdes of Repko’s death and sought consent to amend the complaint.  The defendant refused, claiming that the complaint was a nullity because Repko was already many months dead when it was filed.

Hence, Repko’s counsel, now representing her estate, filed a motion to amend the complaint in October 2019.  The defendant Lourdes cross-moved to dismiss the action.  The trial court judge acknowledged that a dead person had no legal standing to bring a lawsuit but found that the decedent’s estate was entitled to “an equitable tolling of the statute until the plaintiff’s counsel finds out about the death and moves to amend the complaint.”

The judge referenced Rule 4:9-3, which would permit the amendment to the complaint to relate back to the original filing date of the complaint.  The trial court judge noted that if Repko had died an hour after filing, under Rule 4:9-3, the complaint would permit the amendment to relate back to the date the complaint was filed.  However, if the death occurs an hour before filing, that would mean the amended pleading could not relate back and that would be the end of the case.  The trial court judge found on an equitable basis that the estate should be permitted to amend the complaint and denied the defendant’s motion to dismiss. 

The defendant appealed this decision to the Appellate Division.  The question presented was “whether decedent’s estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in the decedent’s name nine months after her death.” 

The issue was one of standing to bring a lawsuit.  The plaintiff conceded that a dead person cannot sue in our courts and cannot continue a suit filed prior to death.  However, the plaintiff was contending that Rule 4:9-3, the relation back rule, applied to plaintiffs, as well as defendants.  The question, however, as framed by the court was “whether the estate’s claim can relate back to a complaint wholly ineffective to said judicial machinery in motion.”

The Appellate Division noted that plaintiff’s death prevented her from suing in her own behalf and, thus, the complaint filed in her name by her counsel was a nullity.  Thus, there was nothing for the estate’s complaint to “relate back” to.  The Appellate Division stated that the relation back rule cannot cure the failure to file a valid complaint in the first instance.

The Court noted that the decedent’s estate would have had a claim under the Survivor’s Act for her personal injury she suffered in her fall at Lourdes.  However, there is a two year statute of limitations for such claim which did not expire until nine months after Repko died. Thus, Repko’s estate still had a viable claim at the time of Repko’s death.

However, Repko’s counsel had no contact with his client in at least ten months leading up to the filing of the complaint.  Thus, she obviously was not available to authorize the filing of the suit.  Her executor did not send to her counsel the death certificate and Letters Testamentary for five months after being informed of the suit.  Thus, the Appellate Division found that even if equitable tolling was applicable in these circumstances, it found no basis for its application here.

Hence, because the complaint filed in Repko’s name nine months after her death was ineffective to invoke the Court’s jurisdiction, leaving nothing for the amended complaint proposed by her estate three years after the accident and twenty-one months after Repko’s death to “relate back” to under Rule 4:9-3, the Appellate Division found that the complaint was barred by the statute of limitations.  Thus, it reversed the trial court’s decision and dismissed the complaint.

Plaintiff, Frances Green (“Green”), sued Monmouth University for injuries she allegedly suffered while attending a Martina McBride concert that was held at the University but was open to the public.  In the published Supreme Court decision of Green v. Monmouth University, 237 N.J. 516 (2019), the issue was whether the defendant University was immune from suit pursuant to the Charitable Immunity Act.  The Court found that the question hinged on whether, in hosting the concert, the University was engaged in performing the educational objectives it was organized to promote and whether Green was a direct recipient of those works when she attended the concert. 

Green was injured while she was climbing stairs at the concert in an area that she alleges was poorly lit.  She stepped on to what appeared to be a solid surface but her foot slipped down to the step below, causing her to fall forward. Her face struck the back of a seat in one of the rows adjacent to the stairs.  A rubber strip sticking up from the step was observed by a University Police Officer in the area where Green fell.

Green filed suit against the University.  Both the plaintiff and the defendant moved for summary judgment and it was granted in favor of the University.  According to the trial court, the University’s resolutions stated that the University’s purposes included holding concerts for the general public “to advance the cause of education in wholesome recreation.”  Accordingly, the trial court determined that the McBride concert fell “squarely within those purposes.”  Further, although Green was not a University student, the court found that she was a beneficiary of its educational purpose when she attended the concert.  Thus, the trial court found that the University was entitled to charitable immunity and dismissed plaintiff’s lawsuit.

The Charitable Immunity Act affords immunity to “non-profit entities organized for religious, charitable, educational or hospital purposes.”  N.J.S.A. 2A:53A-10.  An entity qualifies for charitable immunity when it:

1. Was formed for non-profit purposes;
2. Is organized exclusively for religious, charitable or educational purposes; and
3. Was promoting such objectives and purposes at the time of the injury to the plaintiff who was then a beneficiary of the charitable works. 

Here, the trial court found that there was no dispute that the University satisfied the first two prongs of that standard.  The third prong of the charitable immunity test involved two inquiries:

1. Whether the organization pleading the immunity, at the time in question, was engaged in the performance of the objectives is organized to advance; and
2. Whether the injured party was a direct recipient of those good works.

The Appellate Division had affirmed the trial court’s determination but, there was a dissent, which led to an automatic right of appeal to the New Jersey Supreme Court.  The dissenting judge felt that immunity was inappropriate because the University derived income from the concert and felt that there was a disputed question of whether McBride’s concert was an “artistic performance” that served the University’s educational goals.

The Supreme Court reviewed a number of decisions which showed the liberal construction the Legislature had prescribed for the Charitable Immunity Act.  It noted that the courts have found institutions offering “an array of services” to be educational in nature and “have found a broad variety of activities offered by educational institutions to advance their educational objectives.” 

The Supreme Court agreed with the trial court decision, finding that the University’s stated goals of presenting concerts open to the public to advance the cause of education should not be questioned by the Court to decide what music constitutes “educational” music and what does not.  Further, Monmouth University’s decision to charge a fee to the organization that hosted the concert did not result in the loss of the University’s charitable immunity.  The Court’s decision was not at all based upon whether the University made a profit or not on the concert.  It noted that the Legislature could have set up the Charitable Immunity Act to turn on such issues but did not.  Finally, the Court agreed that the plaintiff was a beneficiary under the language of the Charitable Immunity Act.

As a result, the Court found that Monmouth University was entitled to assert the Charitable Immunity Act as a defense.  Hence, the plaintiff was barred from suing the University and the dismissal of the lawsuit was affirmed.

The time to appeal a New Jersey court decision involving a civil matter will depend upon whether it is an appeal from a trial court decision or an appeals’ court decision.  It will also depend upon whether the appeal is from a final judgment.

There is an automatic right of appeal from a final judgment of the Superior Court trial division.  That appeal would be heard by the Appellate Division. A Notice of Appeal must be filed within forty-five (45) days of the entry of the final judgment.  Under New Jersey Court Rules, final judgments include an order granting or denying a Motion to Extend the Time to File a Notice of Tort Claim and any order either compelling arbitration or denying arbitration. 

It is important to recognize that the time to appeal, as of right, does not start to run until there is a final adjudication of all claims and all defendants in a lawsuit.  If, for example, there are multiple defendants in the case and one defendant is granted a summary judgment, but the case continues on against the other defendants, the time to appeal as of right the summary judgment order does not start to run until there is a final adjudication by either a judgment or a dismissal order as to the remaining defendant or defendants.

Appeals may be pursued before a final judgment through what is called an interlocutory appeal.  A party may seek leave of the Appellate Division to have an order reviewed by the appeals court by filing a motion seeking an interlocutory review within twenty (20) days after service of such order.  The filing of this motion, however, does not stay proceedings at the trial court level except by motion made to the court which entered the order.  Note that it is difficult to persuade the Appellate Division to accept an interlocutory appeal because the bias is not to entertain piecemeal appeals.

As for Supreme Court appeals from an Appellate Division decision, there is no automatic right of appeal for a civil judgment, except if there is a dissent in the Appellate Division decision, the case involves a “substantial question arising under the Constitution of the United States or this State” or in such cases as are provided by law. Otherwise, to pursue an appeal to the New Jersey Supreme Court, a party must petition for certification to request that the court accept the appeal. A notice for Petition for Certification is due twenty (20) days after the entry of the final judgment of the Appellate Division. 

According to our court rules, certification will be granted only: “if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court; if the decision under review is in conflict with any other decision of the same or higher court, or calls for an exercise of the Supreme Court supervision and in other matters if the interest of justice requires.”             

There are other factors which may affect the time to appeal, such as if a Motion for Reconsideration has been filed or a motion is filed for an extension of time.  Additionally, if an appeal is filed by one party, a cross-appeal can also be filed by any other party.  There can be other ways that matters end up on appeal such as if Supreme Court on its own motion decides to certify a matter. However, the above deadlines are the typical ones that a party must follow to be able to pursue an appeal of a civil matter.

Plaintiff Jo Ann Catello Onello appealed from an order dismissing her complaint with prejudice following a jury verdict of no cause of action and an oral ruling barring the testimony at trial of her IME PIP doctor, Dr. Mark Berman. Plaintiff had been injured in a motor vehicle accident and sued the defendant who rear-ended her vehicle. She also had made a claim to her automobile insurance company to obtain personal injury protection (PIP) benefits for her injuries suffered in the accident. The issue on appeal in Onello v. Isa, ­­­­­­­­­­­­­­­­ 2019 N.J. Super. Unpub. LEXIS 66 (App. Div. Jan. 10, 2019), was whether the trial court correctly ruled that the PIP doctor, who had not been named as an expert during discovery by the plaintiff, was barred from testifying on plaintiff’s behalf at the time of trial.

Plaintiff and defendant Ulysses Isa were involved in a motor vehicle accident when a vehicle operated by Isa and owned by defendant Johanna Velasquez rear-ended plaintiff’s vehicle while plaintiff was stopped in traffic. Although plaintiff initially declined medical attention, ultimately, she obtained medical treatment for her injuries and submitted her medical bills to her own automobile insurance company, State Farm Fire and Casualty Company (State Farm), to obtain PIP benefits to pay for her bills incurred. State Farm obtained an IME (Independent Medical Examination) from Dr. Mark Berman, an orthopedic surgeon, for purposes of determining eligibility for benefits. Thereafter, Dr. Berman issued a report which included, among other opinions, that the plaintiff’s injuries to her left shoulder, cervical spine, right hip, and bilateral knees were causally related to the accident. Dr. Berman, however, was not involved in plaintiff’s treatment.

Plaintiff initially filed a pro se complaint in this matter. Thereafter, she retained counsel to represent her. Her counsel filed an amended complaint, naming State Farm as a defendant and asserted claims for UIM (underinsured motorist coverage) under her policy.

The plaintiff claimed that the accident caused an injury to her left shoulder, left knee, neck, left elbow, right knee, right hip. She underwent three cervical fusion surgeries, two left shoulder surgeries, and a left knee surgery.

The parties answered interrogatory questions in discovery. The plaintiff answered the interrogatory question concerning the identity of experts by referring to “all treating physicians, radiologists, x-rays, physical therapists.” At no time during discovery, did the plaintiff amend her answers to interrogatories to name Dr. Berman specifically as an expert witness. State Farm did not retain Dr. Berman as an expert in this case and did not identify him as an expert witness.

During discovery, defense counsel forwarded the State Farm PIP file to plaintiff’s counsel, which included Dr. Berman’s IME report. Defense counsel’s letter stated that the defendant’s answers to interrogatories were deemed to be amended to the extent that the defendant reserved the right to call as witnesses at trial any of the medical providers named in the PIP file.

The plaintiff was granted summary judgment on liability. Thus, the trial was limited to damages with the main issue being proximate causation. Causation was contested because the plaintiff had treated for years for some of her injuries.

Plaintiff first gave notice that she intended to call Dr. Berman as an expert in her pretrial exchange, which requires parties to provide a list of all witnesses, seven days before the first scheduled trial date. On the first day of trial, defendants moved to bar the testimony of Dr. Berman because he was not named as plaintiff’s expert witness during discovery. The trial court granted the motion, ruling that Dr. Berman was barred from testifying because he had not been identified as an expert during discovery by plaintiff. The court stated that the utilization of Dr. Berman with regard to a PIP benefit determination did not automatically make him available as an expert witness without being named and “affording the defense an ability to challenge or depose him during discovery.”

The court did note that the plaintiff had presented the testimony of four experts, including a radiologist, an orthopedic surgeon, a second radiologist, and a spine surgeon. Two of the experts did opine as to causation.

At trial, the defendants presented evidence in support of their claim that plaintiff’s injuries were entirely pre-existing and not proximately caused by the accident. They presented evidence of prior slip and fall accidents causing similar injuries, as well as MRI studies showing degenerative disc disease in the plaintiff’s cervical and lumbar spine. Further, the defendants presented evidence that a spinal surgeon had opined that plaintiff may need cervical spine surgery long before this accident.

At the end of a nine day trial, the jury issued a unanimous verdict for the defendants. Thereafter, the plaintiff appealed the ruling to bar Dr. Berman’s testimony.

The Appellate Division noted that an appellate review of evidentiary rulings of the trial judge is limited. Those rulings are entitled to deference absent a showing of an abuse of discretion, i.e. that there has been a clear error of judgment.

The Court noted that defendants had propounded interrogatories on the plaintiff, requiring her to disclose her experts. Plaintiff did not name Dr. Berman as an expert in her answers to interrogatories, nor did she amend her answers to interrogatories to include his name. She had been well aware of the IME performed by Dr. Berman long before the close of discovery. By failing to timely amend her answers to interrogatories, plaintiff’s untimely, informal attempt to amend answers to interrogatories months after the discovery end date, by first identifying Dr. Berman in her pretrial exchange with the defendants, was properly disregarded by the trial court. The plaintiff’s inclusion of Dr. Berman as an expert in the pretrial exchange, months after the end of discovery, did not cure her discovery violation.

The Appellate Division pointed out that even though Dr. Berman was not permitted to testify, the plaintiff was able to present other expert testimony as to the nature and extent of her injuries and the proximate causation of her injuries. Thus, the Court concluded that barring his testimony did not unfairly prejudice the plaintiff. Accordingly, the Appellate Division upheld the trial court’s ruling, barring Dr. Berman’s testimony at trial.

When a lawsuit is filed in New Jersey state court and the defendant believes that it has a strong defense against the claims asserted by the plaintiff, when is the best time to file a motion with the court asking for the lawsuit to be dismissed? Can the motion be filed immediately in lieu of an answer as the initial pleading or must it await the conclusion of discovery and be filed as a motion for summary judgment? The short answer is that it will depend upon whether the complaint states a claim based upon the facts as pled.

New Jersey is a “fact” rather than a “notice” pleading jurisdiction, which means that a plaintiff must allege facts to support his or her claim rather than merely reciting the elements of a cause of action. That means if a plaintiff fails to include enough facts in the complaint to set forth a viable cause of action, a defendant can file as an initial pleading a motion for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e).

But, a few considerations must be taken into account before expending the time and expense on a motion to dismiss for failure to state a claim. First, the motion must be entirely based upon the complaint and any documents referenced in the complaint. The defendant may not rely upon any other documents or certifications in support of the motion. If a motion is filed under Rule 4:6-2(e) and evidence outside the complaint is offered in support of the motion to dismiss, the court will convert the motion into a motion for summary judgment per Rule 4:6-2.

The second “but” is that the state court judges will view with great liberality the facts as pled and are loathe to grant a motion to dismiss unless there are no facts that would support a cause of action against the defendant. The case law is clear that “every reasonable inference will be accorded the plaintiff” in considering whether a complaint should be dismissed. A good example of a clear-cut motion to dismiss would be one based upon the statute of limitations.

Third, the plaintiff may respond by cross-moving to file an amended complaint, which does set forth additional facts to support a claim. That may or may not be strategically advantageous to a defendant in the long run.

Last, even if the defendant feels it has a strong defense, if it needs to submit any evidence to support its motion to dismiss, then it must file a motion for summary judgment. A motion for summary judgment, however, may also be filed as a first pleading. A defendant can file a motion for summary judgment any time, except they must be returnable at least 30 days before the scheduled trial date, unless the court orders otherwise or for good cause shown. (Rule 4:46-1).

But, should a motion for summary judgment be filed as an initial pleading? What is the likelihood of success? Under our court rules, summary judgment will be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” Rule 4:46-2(1).

Many of our state court judges generally do not favor the dismissal of cases via summary judgment and, particularly, before any discovery has taken place. If it is filed before discovery is complete, a plaintiff will likely oppose it on the basis that it is not “ripe” because the plaintiff has not yet conducted any discovery and been able to flesh out the allegations in the complaint.

Thus, unless the basis is very clear in support of a motion for summary judgment dismissal, such as the lack of jurisdiction or the failure to file a Tort Claims Act notice (if the claim is against a public entity), even the strongest defenses will unlikely result in a dismissal if the summary judgment motion is filed as an initial motion in lieu of an answer. However, it may be filed upon the conclusion of discovery when all pertinent facts have been “fleshed out.”

Whether it will be successful upon the conclusion of discovery will depend upon whether the defendant is able to persuade the trial judge that there are no material facts in dispute and the law on the claims pled is in favor of the defendant. Unfortunately, in New Jersey state court, it is often difficult to persuade a judges to dismiss a case before it goes to trial. Many judges will deny the motion because they do not want to throw a case out before trial and will “determine” that there are facts in dispute which must be decided by a jury.

The Appellate Division on December 6, 2018 issued a reported opinion addressing several key issues regarding trial tactics.  Given that this opinion was approved for publication, it must be assumed that it is the Appellate Division’s intention to emphasize the issues addressed therein so as to influence the conduct of future trials. The matter is Morales-Hurtado v. Reinoso, 2018 WL 6362663 (App. Div. December 6, 2018).

The factual background is straightforward. Plaintiff filed a bodily injury claim arising out of a motor vehicle accident which took place on August 24, 2011. Defendant did not dispute at trial that he was partially responsible for causing the accident. However, the issue of Plaintiff’s liability for the happening of the accident was before the jury. The right front corner of the minibus that Defendant was driving struck the left driver’s side corner of the 2003 Honda Civic which Plaintiff was driving.  Plaintiff asserted that he intended to make a right turn, and accordingly activated his turn signal, but had to yield for pedestrians crossing the road.  He recalled passing the Defendant’s bus shortly before the impact, but claimed that, while stopped for the pedestrians, he saw the bus itself stopped with a passenger getting on to the bus. Plaintiff returned his attention to the pedestrians, and, seconds later, felt the impact to the rear of his vehicle.

During his opening statement, defense counsel made reference to ours being a “litigious society” in explaining why surveillance was conducted of Plaintiff.

At the outset of his cross examination of Plaintiff, defense counsel asked Plaintiff a variety of questions about Plaintiff’s native country, his citizenship, and his ability to speak English.

Defense counsel also brought out that the airbags in Plaintiff’s car did not deploy upon impact.

The Defendant’s trial testimony as to the happening of the accident was different from Plaintiff’s version of the accident, the police report, and Defendant’s own interrogatory answers. In short, Defendant claimed at trial that he had been traveling behind Plaintiff, and when the traffic light turned green, without utilizing a signal, Plaintiff began to turn right and then suddenly stopped, such that Defendant did not have sufficient time to stop.  However, in his discovery responses, Defendant indicated he had himself been in the process of making a turn.

When Plaintiff’s counsel attempted to bring out these inconsistencies, defense counsel objected, asserting that there were no inconsistencies.

Defense counsel had also brought out on cross-examination of Plaintiff that two of the passengers in his vehicle were 60 years old. Defense counsel proffered that he did this “to the extent (one) communicated what happened to the cop.”  However, defense counsel’s last question on direct to his own client was “Did any of the occupants, other than (Plaintiff), sue you?”  The Trial Court immediately struck that question and instructed the jury it was irrelevant to the issue of liability.

Plaintiff claimed that he suffered a variety of bulging and herniated discs in his cervical, thoracic and lumbar spine. The defense questioned whether these injuries predated the accident.

One of Plaintiff’s medical experts prepared a draft narrative report that included the notation “draft for attorney review.” Defense counsel cross-examined the doctor about whether it was his custom and practice while treating patients to write reports to the patient’s lawyers for their approval of what the doctor was recommending.

Plaintiff ultimately underwent spinal surgery, and in his cross examination of the surgeon, defense counsel asked the surgeon if he was familiar with the “concept of secondary gain,” which the doctor defined as “when a patient has a reason to have symptoms beyond organic reasons, beyond reasons that you could explain with the pathologies you have discovered.”  Morales-Hurtado, at *2. However, no expert had opined that Plaintiff was experiencing “secondary gain.”

Multiple other medical experts were also called to the stand and examined at length by the parties.

The jury returned a unanimous verdict on liability, attributing 80% liability to Defendant and 20% to Plaintiff. Plaintiff was then awarded $50,000.00 for pain, suffering, disability, impairment and loss of enjoyment of life by a vote of 7 to 1. The jury unanimously awarded Plaintiff $71,615.73 for past medical expenses.

Plaintiff thereafter appealed, arguing that the Trial Court erred in permitting defense counsel to raise the concept of “secondary gain” through his cross-examination of Plaintiff’s surgeon, even though none of the experts said that Plaintiff was experiencing the same. Plaintiff also alleged that defense counsel’s conduct, including what were characterized as “personal attacks” on witnesses and Plaintiff’s counsel, warranted a new trial. The defense responded that his trial tactics were nothing more than aggressive cross-examination and valid witness impeachment.

The Court began by describing cross-examination as “the greatest legal engine ever invented for the discovery of truth.”  California v. Green, 399 U.S. 149, 158 (1970).  However, the Court then referenced Rule of Professional Conduct 3.4(e) for the proposition that a trial attorney shall not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”

The Appellate Division then discussed the Court’s role in overseeing trials, noting that credibility determinations are to be made by the jury.

The Court noted that while an innocuous violation of any of the foregoing principles does not necessarily require a new trial, when taken together, numerous small errors can accumulate so as to deprive a party of a fair trial.  Torres v. Pabon, 225 N.J. 167, 191 (2016).

While the defense had argued that Plaintiff’s counsel did not object to many of the foregoing instances, nor indeed raised many of those issues on appeal, the Court noted that an “appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial or appellate court.”  Rule 2:10-2.  In this context, the Appellate Division referenced several of the key aspects of the trial is set forth above.

Regarding defense counsel’s opening statement, the Court indicated that an opening statement is not an occasion for argument, but rather to state what evidence will be presented and to relate parts of the evidence and testimony to the whole. The Court held that defense counsel’s reference to a “litigious society was improper. The remark was not a statement of evidence, and it arguably was an appeal to prejudice.”  Morales-Hurtado, at *7.

The Court characterized defense counsel’s questions regarding Plaintiff’s citizenship, need for an interpreter and the like as having the potential to appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system, which is to evaluate relevant evidence fairly and objectively.  State v. Sanchez-Medina, 231 N.J. 452, 463 (2018).  The Court held that the probative value of such questions was substantially outweighed by the risk of undue prejudice.  Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 281 (App. Div. 2009).

The Court then found defense counsel’s questioning regarding the ages of the passengers in the car as relevant to the “context of the totality of inappropriate comments and questions throughout the trial,” noting that “as we have recognized, sometimes jury instructions about the misuse of evidence are simply inadequate to effectively blunt the risks of significant prejudice.”  James v. Ruiz, 440 N.J. Super. 45, 76-77 (App. Div. 2015).

Then, the Court reiterated that testimony regarding air bags is inadmissible in the absence of expert testimony.

The Court then turned to the cross-examination of Plaintiff’s medical experts.  After reiterating that cross-examination about a doctor’s relationship with a law firm, the number of times they have testified at the firm’s request, and the basis of their compensation arguably demonstrate bias and are thus permissible, the Court also indicated that it was not improper to establish that the doctor knew the Plaintiff was involved in a lawsuit when the doctor wrote a report. However, the Court also indicated that opposing counsel may move to exclude the evidence pursuant to N.J.R.E 403 on the grounds that it is more prejudicial than probative.

The Court then held that defense counsel’s cross-examination of the doctor about the “draft report” should be barred on retrial, citing Rule 4:10-2(d)(1) for the proposition that discovery of communications between an attorney and expert concerning the collaborative process during preparation of reports is precluded.

Thereafter, the Court indicated that defense counsel’s statements made while cross-examining the surgeon as to the issue of “secondary gain” should be disallowed on retrial.  The Court noted that in Rodriguez v. Wal-Mart Stores, 449 N.J. Super. at 596, it explained that “in a jury setting, there is a great danger that an expert witness who characterizes a plaintiff as a ‘malingerer’ or a ‘symptom magnifier,’ or some other negative term in impugning the plaintiff’s believability will unfairly infect the trier of fact’s assessment of the plaintiff’s overall narrative on both liability and injury,” and thus “such testimony at a civil jury trial should be categorically disallowed under N.J.R.E. 403.”  Morales-Hurtado, at *8.

The Appellate Division thereafter addressed several other examples of what it described as “defense counsel’s penchant for making inappropriate comments in front of the jury and usurping the court’s trial role” and “blurting out opinions and demands of his adversary in front of the jury.”

Regarding closing arguments, the Court cited Rodd v. Raritan Radiologic Associates, PA, 373 N.J. Super. 154, 171-172 (App. Div. 2004) for the proposition that although attorneys are given broad latitude in summation, they may not use disparaging language to discredit the opposing party or witness, or to accuse opposing counsel of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or deliberately distorting evidence.

The Court accordingly held that the cumulative effect of multiple errors deprived Plaintiff of a fair trial and of a verdict based on the merits of the party’s claims, entitling Plaintiff to a new trial on issues.

This very recent reported opinion of the Appellate Division should accordingly be reviewed by trial attorneys and adjusters as an indication of how reliance on certain tactics at time of trial may prove problematic in the event of an appeal.  While it appears that many of defense counsel’s tactics and comments as outlined above “went too far,” the Appellate Division’s categorical indication that expert opinion that a Plaintiff is a “malingerer” or exhibiting “symptom magnification,” for example, should certainly guide defense medical expert preparation prior to trial.

In a recently published Atlantic County Law Division case, Taing v. Braisted, 2017 N.J. Super. LEXIS 182 (Law Div. October 23, 2017), Judge Marczyk dealt with the issue as to whether defense counsel can question plaintiff about whether his airbag deployed in his vehicle at the time of the accident. The judge noted that there was no published New Jersey case addressing this issue. Defense counsel wanted to argue that the lack of airbag deployment was indicative of a minor impact.

This issue was raised through an in limine motion filed by plaintiff prior to trial, requesting that the judge bar the defendant James Braisted from questioning plaintiff about whether or not the airbags in his vehicle deployed during the accident. The plaintiff contended that: (1) the vehicle was a 1996 model, not equipped with side airbags and the collision involved was a side impact and (2) even if the vehicle had airbags, it was improper for the defendant to suggest to the jury that the impact of the vehicles was minor because the airbags did not deploy.

Defendant argued that the deployment of airbags was analogous to the use of photographs in an automobile case, which was permitted under New Jersey law. Defendant contended “that the jury should be able to consider whether or not the airbags deployed in their evaluation of the force of impact from the subject accident in much the same way a jury is permitted to view photographs of damaged vehicles that were involved in an accident to evaluate plaintiff’s injuries.”

The judge noted that the relevance of whether or not airbags activated in an accident is a “recurring issue” in automobile negligence cases. Sometimes the plaintiffs will raise the issue to try to show that there was a significant impact. However, more commonly, it is the defendants who raise the issue in an attempt to demonstrate that the accident was relatively minor.

Judge Marczyk agreed that the deployment of airbags could be relevant depending on the facts of the case. The judge cited as, an example, if the plaintiff was alleging a significant impact in a head on collision in which airbags in the plaintiff’s vehicle were designed to deploy, if the vehicles were travelling as fast as the plaintiff alleged, but they did not deploy.  Arguably, this failure could raise an inference that one or both of the vehicles were not travelling as fast as the plaintiff contended, which could be relevant for the jury to assess credibility and damages.

However, generally, there is no agreement between the parties in whether airbags should have deployed because there are too many variables. The court held that expert testimony is necessary to address these variables. Without expert testimony, the jury would not know the force needed to trigger the specific airbag contained in the vehicle. An expert is needed to explain how an airbag system functions and the location of the airbag sensor. Hence, a jury would not be able to understand why an airbag did or did not deploy in a particular accident.

Under New Jersey law, expert testimony is required when the “matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.” When the case involves a complex instrumentality, expert testimony is needed to aid the jury in understanding “the mechanical intricacies of the instrumentality.”

Here, the judge ruled that a motor vehicle’s airbag system is “a complex mechanism or instrumentality” and that expert testimony is required to explain why it did or did not activate under a specific situation. It would not be within the common knowledge of a juror to know the force needed to trigger a deployment of an airbag. Without expert testimony, a jury would not be in a position to determine the relevancy of why an airbag did not deploy.

Thus, Judge Marczyk concluded that it was improper for the defendant to question any witness as to the failure of airbags to deploy to raise an inference that the accident involved was a minor impact. Without expert testimony, “the fact that the airbags did not deploy does not provide the jury with any meaningful information and could mislead the jury.” The court noted that it was possible that a serious accident with significant vehicle damage may not cause airbag deployment while, conversely, a minor accident with little vehicle damage could cause airbags to deploy.

Because the defendant did not have an expert, Judge Marczyk concluded it was improper for the defendant to present evidence as to whether the airbags deployed so as to suggest that the accident involved a minor impact.

In a published Law Division decision, Abdurraheem v. Koch, 2018 N.J. Super. LEXIS 145 (Law Div. Mar. 19, 2018), the trial judge in an Atlantic County automobile negligence case was asked to modify Model Jury Charge 5.34 “Photographic Evidence in Motor Vehicle Accidents,” when there was testimony as to the damage of the vehicles involved but no photos were introduced into evidence. This issue had never been decided before in any reported case in the state. The trial court, decided under the circumstances, that it was appropriate to give a modified charge to the jury, even without the parties utilizing photos of the vehicles.

Model Jury Charge 5.34 “Photographic Evidence in Motor Vehicle Accidents” is commonly referred to as a “Brenman” charge because it is based upon the Supreme Court’s decision in Brenman v. Demello. In Brenman, the Supreme Court addressed the issue of whether biomechanical expert testimony was required to permit the admission of photographs of motor vehicle damage when the cause of plaintiff’s injuries were at issue. The Supreme Court decided that expert testimony was not required when the photographs were used to show a correlation between the damage to the vehicle and the cause or extent of the injuries claimed by plaintiff.

However, the Supreme Court directed that the trial judge should remind the jury that some bad accidents result in little injury, but some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is just one factor to be considered along with all of the other evidence for the jury to determine the level of the plaintiff’s injuries resulting from the accident. The Court referred the matter to the Supreme Court Committee on Model Jury Charges for the formulation of a specific charge (i.e., instruction to a jury as to the law they are to utilize in reaching their verdict).

Accordingly, the Committee created Model Jury Charge 5.34, entitled “Photographic Evidence of Motor Vehicle Accidents.” According to this charge, the jury would be instructed that they “may attribute the weight to the photographs as they deem appropriate taking into consideration all of the other evidence in this case.” Specifically, the jury would be told “in some accidents resulting in extensive vehicle damage, the occupants may suffer minor injuries or no injuries at all. In other accidents where there is no or little apparent vehicle damage, the occupants may suffer serious injuries.”

In Abdurraheem, there was disputed testimony as to the extent of the damage of the vehicles with the plaintiff testifying to significant damage while, on the other hand, the defendant testifying that the impact of the collision was minor. However, neither party had taken photographs of the vehicles after the collision. Despite the lack of photographs, defense counsel emphasized in closing the relative minor impact of the accident and the lack of any significant damage the vehicles to paint a picture of the “trivial incident” incapable of causing permanent injury to the plaintiff. On the other hand, the plaintiff’s counsel argued that the impact was not minor and, in fact, did cause plaintiff to suffer a permanent injury.

As a result of this testimony, the trial court determined that the jury required the same guidance that is provided when photographs are shown and that the standard Brenman charge should be given to the jury with minor modifications. Although the testimony was conflicting, the trial court noted that “juries are always called upon to weigh and balance the evidence and to evaluate the credibility of the witnesses.” It would be up to the jury to weigh the testimony “to decide whether there was minor, moderate or significant damage and, in turn, the correlation between the damage to the vehicles and the cause or extent of plaintiff’s injuries.” The trial court judge believed it would be helpful for the jury to be instructed about how to consider the damage the vehicles with respect to the alleged injuries.

Thus, the court gave a modified charge. He adapted the charge to delete the reference to photographs of the vehicles. He changed the beginning of the charge to instruct the jury that: “There has been testimony in the case regarding the damage to the motor vehicles involved in the accident. The testimony addressed the damage or condition of plaintiff’s and defendant’s vehicles after the impact. As judge of the facts, you may attribute such weight to the testimony as you deem appropriate taking into consideration all of the other evidence in the case.” The rest of the charge remained the same.

The judge noted that the importance of the Brenman charge was not based upon whether the evidence was in the form of photographs but rather to instruct the jury about how to evaluate evidence of motor vehicle damage in relation to the alleged injuries. The trial court found that evidence of vehicle damage being in the form of testimony rather than photographs should not govern whether the charge is given.

Plaintiff Josh Willner suffered an injury while climbing a rock climbing wall that was owned by his employer (Ivy League Day Camp). He sued the camp, the manufacturer of wall and parts in the wall (Vertical Reality, Inc. and ASCO Numatics) under product liability theories. Before trial, he made a single offer of judgment as to all defendants in the amount of $125,000. The jury awarded him a total of $358,000. The issue in the New Jersey Supreme Court case, Willner v. Vertical Reality, 2018 N.J. LEXIS 1004 (2018), was his entitlement to sanctions under the offer of judgment rule against the individual defendants in this multidefendant case.

The jury’s verdict apportioned liability 30% against Numatics and 70% against Vertical Reality. (Ivy League Day Camp had been dismissed out before trial by summary judgment.) After the jury award, based upon his offer of judgment, Willner filed a motion for attorneys fees. The trial judge granted the motion, ruling that the offer of judgment sanctions were triggered because the total award of $358,000 was more than 120% of the offer of $125,000 made by the plaintiff. Attorneys fees of $62,963 plus costs of $12,160.83 were awarded to the plaintiff.

Numatics appealed this decision to the Appellate Division, which affirmed the trial court judge’s decision to award fees. Numatics filed a petition for certification to the Supreme Court, which petition was granted. That petition also sought to overturn the liability verdict, which the Supreme Court declined to overturn. However, it did reverse the award of the attorneys fees.

Numatics argued that the rule should be inapplicable to it because its 30% share of the verdict equaled $107,400, which was less than the $125,000 offer of judgment. The plaintiff argued, however, that the total amount of the jury verdict must be compared against the offer and the total amount of the jury verdict exceeded 120% of the offer of judgment made.

The Supreme Court noted that the offer of judgment rule was designed as a mechanism to “encourage, promote, and stimulate” early out of court settlements. The rule provides an incentive to settle by imposing financial consequences on a party who rejects a settlement offer that turns out to be more favorable than the judgment. For a plaintiff to invoke the sanctions, if the plaintiff obtains a money judgment 120% or more than the offer of judgment, the plaintiff can be awarded sanctions of attorneys fees, expenses, and costs of suit from the time of the offer.

The rule leaves as unclear whether sanctions should be imposed on an individual defendant in a multidefendant case when the plaintiff makes a global offer to multiple defendants, there is no acceptance of the offer, and no counteroffer is made in response. The Court found this scenario problematic because if would force an individual defendant who was less liable than its co-defendants to consider settling for an amount greater than its liability to avoid the imposition of sanctions.

The Supreme Court found that was the exact circumstance in this case because Numatics was found only 30% liable. Hence, the Court held it would be unfair to impose sanctions upon Numatics under these circumstances and reversed the award of attorneys fees and costs.