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Appellate Division Reverses Summary Judgment Order Granted Due to Plaintiff’s Medical Experts Failure to Apportion Her Injuries Among Two Accidents and Her Preexisting Condition

Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017.  The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back.  The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.

At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10.  However, she acknowledged that the damage to her car was minimal, and it did not require repairs.  It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg.  She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder.  It was noted that three months previously, she had spinal fusion surgery at L4-L5.

As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1.  Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.

Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour.  As a result of the impact, plaintiff struck her head on the seat back.  She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.   

Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ.  Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy. 

Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome.  He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth. 

Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident.  He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level. 

However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.

Defendant did not retain a medical expert.  However, defendant did obtain an accident reconstruction expert and a biomechanical expert.  The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”

At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident.  He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident.  Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.

The trial court judge granted the motion, dismissing the lawsuit.  The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.”  The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident.  Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation.  Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”

The Appellate Division reversed.  It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury.   It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.”  The burden to allocate damages is placed on the party in the best position to present evidence.  Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”

But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.”  The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.

Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment.  Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision.  The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition.  She does retain the burden of proving her injuries were attributable to the first accident.  It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.

Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation.  Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back.  Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.”  However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.

Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

Plaintiff’s Personal Injury Lawsuit From Auto Accident Barred Due to Her Failure to Provide a Timely Certification of Permanency

Plaintiff Renee Ransdell was involved in an automobile accident with defendant Shari Waldron in January 2018.  At the time of this accident, plaintiff had an automobile insurance policy which subjected her to the limitation on lawsuit threshold, requiring her to prove a permanent injury to recover damages for her noneconomic loss (i.e., her pain and suffering).  The issue in Ransdell v. Waldron, 2024 N.J. Super. Unpub. LEXIS 2677 (App. Div. Oct. 30, 2024) was whether plaintiff’s claim was barred due to her failure to submit a timely certification of permanency and expert report to establish a permanent injury under the pertinent auto insurance statute, N.J.S.A. 39:6A-8(a).

 Plaintiff contended that she suffered a head injury, leading to a hearing loss, as well as spinal injuries from this accident.  Discovery in this case closed in September 2021. Plaintiff failed to provide any expert reports or expert opinions that her injuries were permanent and causally related to the accident during the discovery period.

The matter was arbitrated in March 2022, but plaintiff timely filed for a trial de novo and a trial was set for November 2022.  Before trial, the defendant filed a motion for summary judgment, which was to be heard on September 23, 2022.  Plaintiff requested consent to carry the motion until November 18, 2022, and the trial until February 13, 2023.  The defense counsel did consent, upon the proviso that it was to give plaintiff an opportunity to respond to the motion, and not to provide plaintiff with the opportunity to provide new and additional discovery. 

Nevertheless, plaintiff attached to her opposition to the motion for summary judgment, an “affirmation” by Dr. Rahul Sood, stating that he was one of her treating physicians. She also attached notes from an October 18, 2022, visit with him.  The treatment portion of this report provided an opinion that her symptoms were causally related to this automobile accident with a reasonable degree of medical probability.  He also stated that her prognosis was guarded. Further, plaintiff submitted a certification of permanency provided by Dr. Sood. 

The trial court granted the motion for summary judgment, ruling that plaintiff failed to meet her burden under the statute.  The court noted that plaintiff’s failure to produce a timely certification of permanency was not fatal to her claim.  However, plaintiff did not timely provide any medical expert report or narrative report as required under the court rules.  Further, the trial court noted that plaintiff failed to move the court to reopen discovery and failed to attach a certification of due diligence to the belated certification of permanency.   

This appeal followed.  Plaintiff argued that the certification of permanency from her treating doctor did comply with the New Jersey statute, N.J.S.A. 39:6A-8(a).  Further, plaintiff argued that the case should be remanded so her new attorney could remedy the errors of her prior counsel.

The Appellate Division noted that the trial courts have broad discretion to establish discovery deadlines.  Generally, the Appellate Division will defer to a trial court’s disposition of discovery unless it finds that the trial court has abused its discretion.  The admission or exclusion of expert testimony is “committed to the sound discretion of the trial court.” 

The Court noted that under New Jersey auto insurance law (referred as AICRA), if the plaintiff has selected the limitation on lawsuit threshold option, a claim for a non-economic loss is only permitted where the injured party has suffered a bodily injury which results “in a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. . . .”  It requires that the plaintiff file a certification by a physician attesting “under the penalty of perjury that the injury satisfies one of the threshold categories.” 

Further, this law requires a plaintiff to provide within sixty days of the answer (to the complaint) a certification from a physician, stating that the plaintiff’s injury is permanent and is based on and refers to objective clinical evidence.  The focus on objective evidence is to prevent lawsuits based only upon a plaintiff’s subjective reports from proceeding.  Further, the Court noted that a court can grant no more than one additional period, not to exceed sixty days, to file the certification.  If the plaintiff fails to timely file a certification, plaintiff would be subject to “an array of sanctions that include reimbursing the defendant with reasonable attorney’s expenses or dismissal of the complaint.”  The court is to “choose a response that is proportionate to the procedural stimulus after considering the facts.”

In applying the standard in this case, the Appellate Division was not persuaded that the trial court made a mistake in granting defendant’s motion for summary judgment.  It noted that the plaintiff had failed to provide any expert reports by the end of the discovery period, before the arbitration was held, before defendant filed a motion for summary judgment, before the initial return date of the motion or before the initial trial date that had been scheduled.  Rather, she submitted an untimely expert report from a previously unnamed expert over one year after the end of discovery in opposition to defendant’s motion for summary judgment.

The Appellate Division further noted that under the court rules, specifically
R. 4:23-5(b), a court may exclude the testimony of a treating physician whose report is not furnished pursuant to the court rules when it is demanded. Rule 4:17-7 requires that amendments to Answers to Interrogatories must be served no later than twenty days prior to the end of the discovery period and “may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.”  Without a certification of due diligence, any late amendment must be disregarded by the court and adverse parties.

In considering these rules, the Appellate Division found that plaintiff’s untimely submission of her expert report, as an exhibit to her opposition to defendant’s summary judgment motion without a certificate of due diligence or a motion to open discovery, did not comply with the pertinent court rule (R. 4:17-7).  The Court agreed with the trial court that “the uncontroverted sequence of events indicates dismissal was the appropriate remedy.”  This certification of permanency was only sought by the plaintiff’s former counsel in response to the motion for summary judgment, well after the discovery end date.  Plaintiff failed to file a motion for good cause to extend the time for filing as permitted by the statute.

Hence, the Appellate Division agreed that under the circumstances and considering the substantial prejudice to defendant, “the trial court was well within its discretion to disregard the certification of permanency and consider it outside the scope of the record upon which summary judgment could be granted.”  Therefore, the Appellate Division affirmed the trial court’s decision in granting summary judgment and dismissing the complaint. 

State Found Immune From Liability for Auto Accident Based Upon Tort Claims Act Immunities

Plaintiff Ralph Jameson was injured in an automobile accident while he was driving around a traffic circle (Cranbury Circle) in Cranbury Township.  His vehicle collided with a truck driven by defendant Richard Kyle.  The issue in Jameson v. DRD Int’l, Inc., 2024 N.J. Super. Unpub. LEXIS 1481 (App. Div. July 8, 2024) was whether the plaintiff could pursue a claim against the State of New Jersey, which controlled the Cranbury Circle, or whether the State had immunity from this claim under the Tort Claims Act.

This accident occurred when Jameson was driving northbound on U.S. Route 130 in Cranbury Township.  Defendant Kyle was driving a truck on South Main Street, which intersects with the northbound lanes of U.S. Route 130 at the Cranbury Circle.  Although there is a stop sign at the intersection of South Main Street where it enters the Cranbury Circle, Kyle did not stop at the stop sign.  He believed he had enough time to pass through the intersection and circle before any northbound vehicles on U.S. Route 130 came to the intersection.  However, he misjudged and Jameson’s car struck Kyle’s truck which resulted in severe injuries to Jameson.

Plaintiff sued Kyle and his employer, DRD International, Inc.  That claim settled.  However, he also sued the State of New Jersey and Middlesex County. The County was later dismissed out of the case. This appeal concerned plaintiff’s claim against the State.

Plaintiff contended that the State was negligent in its design, maintenance, and/or control of Cranbury Circle and that it created a dangerous condition.  Plaintiff produced two expert reports to support his claim.  His engineering expert opined that the Cranbury Circle was a dangerous condition because it had a crash history “that exceeded crash history standards and that the Cranbury Circle’s crash history should have raised red flags.”  His accident reconstruction expert opined that there was a dangerous condition at the Cranbury Circle “because slow-moving vehicles, such as tractor trailers, entering the Cranbury Circle could pose a danger to vehicles traveling at highway speeds.”

At the trial court level, the State filed for a summary judgment.  It contended that plaintiff had not and could not establish that the Cranbury Circle was a dangerous condition.  It also argued that it was entitled to plan or design immunity and immunity for failure to provide traffic signals.  The trial court granted the State’s summary judgment motion and dismissed the claims against the State.  

That order was appealed to the Appellate Division. The issues upon appeal were whether plaintiff was able to show that the Cranbury Circle was a dangerous condition under the Tort Claims Act and whether the State had established that it was entitled to plan or design immunity under the Act.

The Appellate Division agreed with the trial court decision.  It found that the plaintiff did not establish the existence of a dangerous condition at the Cranbury Circle.   The plaintiff had not identified anything specific in the Cranbury Circle that created a danger.  Plaintiff’s engineering expert suggested that the Circle may be poorly designed because there were a high number of accidents at the Cranbury Circle but his expert failed to point to a specific design defect in the Cranbury Circle.  The expert had suggested several changes that could be made to the Cranbury Circle, including widening lanes or installing traffic signals, rather than stop signs, but emphasized that the high volume of traffic through the Cranbury Circle and the multiple points where accidents could occur were what made the Circle dangerous as a whole.

As for the reconstruction expert, he effectively acknowledged that Kyle failed to stop at the stop sign and “tried to excuse that failure by reasoning that a truck would have difficulty traveling across the Cranbury Circle in a timely manner if it had stopped at the stop sign.”  The Appellate Division found that this opinion did not form a factual basis from which a jury could find that there was a dangerous condition at the Circle if Kyle had stopped as required by the stop sign.  The jury would have been left to speculate that there would have been a sufficient gap in ongoing traffic to allow a truck to safely pass through the intersection.

The Court pointed out that plaintiff’s real argument was that the dangerous condition at the Cranbury Circle arose out of its design.  However, plaintiff failed to show that the design was defective.  Plaintiff also failed to show that the unidentified dangerous condition at the Cranbury Circle caused this accident.

Further, the Appellate Division found that the State did have plan or design immunity under the statute, N.J.S.A. 59:4-6(a).  Under the Tort Claims Act, a public entity would have plan or design immunity from liability for an accident if it is able to show that the injury was caused by the plan or design of its property, where this plan or design has been approved in advance of the construction or improvement by the Legislature, or the governing body of the public entity.  The Court pointed out that when this immunity attaches, the public entity is not subject to liability for an injury that arises from the design of the property.

Here, the Appellate Division found that the State did provide several as-built documents and diagrams of the Cranbury Circle’s design plan.  It noted that these drawings contemplated the “geometry” of the Cranbury Circle, which is apparently what plaintiff contended caused or contributed to the accident.  The documents included signatures of the individuals who submitted, recommended or approved the plans.  Some of the documents predated the construction of the Circle. 

The Appellate Division found that by producing these documents, the State had met its burden of demonstrating that it considered the Cranbury Circle’s shape in formulating its design.  It did not need to produce a plan or design applicable to the stop sign but only needed to offer evidence that it considered the flow of traffic around the Cranbury Circle generally.  Hence, the Appellate Division found that the State was entitled to plan or design immunity.

Because the Appellate Division found that the plaintiff had failed to demonstrate a dangerous condition at the Cranbury Circle and that the State established that it was entitled to plan or design immunity, even if there had been a dangerous condition of the Cranbury Circle, it affirmed the trial court’s decision, dismissing the lawsuit.

Plaintiff’s Bodily Injury Claim Dismissed Due to Failure to Show How a Subsequent Accident Aggravated Pre-existing Injuries From Prior Accident

Plaintiff Tony Polite was involved in two automobile accidents within thirty days.  The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019.  Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident.  The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.

In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole.  He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee.  He filed a lawsuit against the driver Estell Norman.  One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle.  It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel.  He filed the within lawsuit against defendant Kahn.  These two lawsuits were consolidated and discovery ensued.  He claimed that his symptoms from the first accident became significantly worse following his second accident.

Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report.  The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident.  He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019.  Thereafter, he settled the Norman matter (the first accident).

Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident.  His complaints were of his neck, left shoulder, lower back and right knee.

Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident.   Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion. 

Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain.  He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022.  Plaintiff provided a supplemental certification with these additional medical records.  However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.

The trial court judge granted the defendant’s motion for summary judgment.  The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.”  The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred.  He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.” 

This decision was appealed.  Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.

The Appellate Division rejected that argument.  It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident.  The progress notes did not state that the June accident was the cause of plaintiff’s injuries.  Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.

Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident.  He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI.  However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.

 Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries.  The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.

 In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident.  Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment.  Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.

Police Officer Found to Be Immune From Liability for an Accident Caused by High Speed Chase

Plaintiffs Omer Jackson and Sharonda Jackson sued defendants County of Hudson, Hudson County Sheriff’s Office, and Officer Renato Maure-Cascaret for injuries suffered by Omer when his car was hit by a car that was being pursued in a high speed chase by Officer Maure-Cascaret.  The defendants successfully filed for a motion for summary judgment, obtaining a dismissal of the lawsuit.  The issue in Jackson v. County of Hudson, 2024 N.J. Super. Unpub. LEXIS 561 (App. Div. Apr. 4, 2024) was whether the officer committed willful misconduct in his police pursuit or whether he was immune from liability under the Tort Claims Act.

The incident occurred at about 5:00 a.m. when Officer Maure-Cascaret of the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  He observed a vehicle driven by defendant Oriental Hamlet pass through three consecutive red lights and his radar captured his speed at traveling between 68 and 70 miles per hour on a road with a posted speed limit of 25 miles per hour.  The officer began following Hamlet and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  He radioed the on-duty communications officers to inform them that he was following a vehicle traveling at a high speed.  The Hamlet vehicle ultimately slowed down and the officer was able to initiate a traffic stop.  After both vehicles were stopped for several seconds, the officer called in Hamlet’s license plate but then Hamlet suddenly sped away.

Officer Maure-Cascaret again contacted the on-duty communications officers to report that the vehicle had sped away and he was going to pursue it.  Hamlet then sped through a red light and collided with Omer’s vehicle which had the green light.

This entire incident from the time the officer initially observed Hamlet speeding to the attempt to pull him over, to the accident terminating the pursuit, lasted only about 50 seconds.  The time period after the initial stop was about 30 seconds and lasted approximately 9 or 10 blocks.  The officer was about one block behind Hamlet when the collision occurred.

The trial court found that the Tort Claims Act provision, N.J.S.A. 59:5-2(b)(2), conferred immunity on the police officer for injuries resulting from a pursuit.  Under this statutory provision, “neither a public entity nor a public employee is liable for any injury caused by an escaping person or escaped person.” And, further, under N.J.S.A. 59:5-2(c), neither the public employee, nor the public entity is liable for “any injury resulting from or caused by a law enforcement officer’s pursuit of a person.”

Plaintiff contended, however, that there was an issue whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy and, therefore, constituted willful misconduct (which would void out these immunities).

In the prior New Jersey Supreme Court Case of Fielder v. Stonack, the Court defined willful misconduct in the context of police pursuits.  There are two elements which must be satisfied: “(1) disobeying either a specific lawful command of a superior or a specific lawful standing order and (2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it.”  

The Appellate Division agreed with the trial court decision herein that “there were no credible facts in the record to establish Officer Maure-Cascaret engaged in willful misconduct during his pursuit of Hamlet.”  Under the Attorney General Guidelines, a police officer may only pursue a suspect if they have committed a first-or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer. 

In his deposition, the officer had explained that his decision to pursue Hamlet was based, in part, on Hamlet pulling away from the initiated traffic stop.  This was a second degree offense of eluding, warranting police pursuit based upon the Attorney General Guidelines. In conjunction with the characterizations of Hamlet’s action as a second degree offense, the officer’s decision was authorized and, therefore, his actions did not constitute willful misconduct.

Further, the Appellate Division noted that this pursuit was of such a short duration that the accident occurred before the officer could even have a reasonable chance to terminate the pursuit.  As for the use of excessive speed, it is judged upon whether it is reasonable for the officer to move at excessive speed.  The trial judge had concluded that finding the officer acted improperly pursuing Hamlet at the speeds he traveled would be “an unfair and illogical reading of the guidelines.”

To deny the defendants’ summary judgment motion “would have required a factual dispute over whether Officer Maure-Cascaret demonstrated willful misconduct in both his decision to pursue Hamlet and his failure to terminate the pursuit prior to the collision.” 

The Appellate Division found that the undisputed facts showed that the pursuit occurred on a virtually empty street before 5:00 a.m., it lasted 30 seconds, for only 9 blocks, with no order from a commanding officer to terminate the pursuit, and there was no expert report opining that the officer’s speed was unreasonable.  Hence, based upon these factual circumstances, there were no facts that could demonstrate willful misconduct and, therefore, no genuine dispute as to any material fact existed.  Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Defense Counsel Permitted To Cross-Examine Plaintiff Concerning Statements Made In Pre-Accident Medical Records

Plaintiff Monica Graham was awarded $325,000 in damages in a lawsuit she filed against defendant Carole Venetianer for injuries she suffered in a car accident with defendant.  Plaintiff filed an appeal of this jury verdict, arguing that defense counsel should not have been permitted to cross-examine her using medical records not admitted into evidence.  The issue in Graham v. Venetianer, 2024 N.J. Super. Unpub. LEXIS 819 (App. Div. May 8, 2024) is whether the trial court made an error in permitting plaintiff to be cross-examined concerning her prior medical history, as well as focusing on her pre-accident admissions in those records during the summation to the jury.

Plaintiff was in an accident with the vehicle driven by the defendant on April 7, 2016.  Following the accident, she treated for spinal injuries, resulting in spinal surgeries performed by a neurosurgeon in 2018 and 2019.  The plaintiff had medical experts testify for her at trial, which did not include her family doctor, Dr. Linda Guirguis.  However, on cross-examination, defense counsel questioned plaintiff about her prior medical history and confronted her with admissions and statements attributed to her about her pain and therapy regimen in Dr. Guirguis’s medical records.  These records were never admitted into evidence.

The trial court found that the defense’s cross-examination of plaintiff regarding her pre-accident medical treatment was proper.  Upon appeal, plaintiff argued that she was unfairly prejudiced by defense counsel’s use during cross-examination of the pre-accident medical records. 

In analyzing the arguments made by the plaintiff, the Appellate Division noted that under the New Jersey Rules of Evidence, there were certain exceptions to the hearsay rule which permitted an out of court statement.  One of the exceptions is statements made for purposes of medical diagnosis or treatment. (N.J.R.E. 803(c)(4)).  Pursuant to this rule, statements made for the purposes of medical diagnosis would be admissible when used to show the existence of a medical issue.

The Appellate Division concluded that the scope of plaintiff’s cross-examination, to the extent it focused on her medical condition prior to her 2016 accident, was permissible.  The defense asked plaintiff to confirm her pre-accident statements to Dr. Guirguis about her prior neck and back pain, pain from sitting and standing while on vacation, two visits to her radiologist, continuous follow up on neck and back complaints and a prescription for pain medication.   The statements made by plaintiff were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment.

The Appellate Division also found that plaintiff was not unfairly prejudiced by defense counsel’s reference to the same medical records in summation.  First, it noted that plaintiff’s counsel failed to object during the summation.  In the appeal, Plaintiff had targeted that part of defendant’s closing which referenced her visits and physical complaints to her family doctor in 2015.  The Appellate Division found that there was “nothing in defense counsel’s closing that could be characterized as plain error which was clearly capable of leading to an unjust result.”  Thus, the Appellate Division refused to disturb the trial court rulings and the jury verdict. 

Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

Day in the Life Video Excluded at Trial

Plaintiff Tameko Sawyer was in a motor vehicle accident with defendant Randy Lucas in which she claimed to have suffered an injury to her neck, lower back, and shoulder.  Defendant Lucas had been driving a tractor-trailer owned by defendant Hicks Paving, LLC and Hicks Septic & Portable Toilets, LLC on Route 78, when he moved his truck into plaintiff’s lane, striking her car and causing it to slam into the guardrail.  At issue in the case of Sawyer v. Lucas, 2024 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 11, 2024) was whether the plaintiff’s Day in the Life video and her recently supplied supplemental medical records should have been barred by the trial court or whether this evidence should have been admitted into evidence and shown to the jury.

A Day in the Life video is a powerful tool of evidence utilized by plaintiffs to show graphically over the course of the day an injured party’s disability and pain and suffering caused by an accident.  This graphic evidence can be more compelling than mere oral testimony describing a person’s medical condition and limitations.

In Sawyer, there was an issue as to the extent of plaintiff’s injuries.  Plaintiff claimed an injury to her neck, lower back, and shoulder.  At the hospital, she was evaluated for head, neck, and back injuries.  Subsequently, she was found to have suffered disc herniations and bulges in her neck and underwent five separate surgeries.  At trial, she did testify about conservative pain management for an older, unrelated back injury.  During the trial, there was disputed testimony about the plaintiff’s back injury and whether it was either caused or exacerbated by the accident.

Prior to trial, the plaintiff had prepared a Day in the Life video.  This video was five minutes long and was recorded about one and a half years after the accident.  However, the video was made just eight days after plaintiff had back surgery, at which time she still required significant assistance with activities of daily living.  Plaintiff contended that the video was relevant “to support her claim for future medical costs and the pain, suffering and loss of enjoyment she endured.”

During trial, the defendants filed a motion to exclude the plaintiff’s Day in the Life video and some recently supplied medical records.  The trial court granted the motions and barred both the video and the recently supplied records from being admissible at trial.

The jury found in favor of the plaintiff. However, Plaintiff was dissatisfied with the amount of the verdict. She moved for a new trial on damages or additur. (Additur is a procedure by which a court may increase the amount of damages awarded by the jury.)  The trial court denied the additur motion, finding that the jury’s verdict did not shock the conscience (which is the standard for increasing or reducing a jury award on damages). 

She then appealed the trial court’s evidentiary rulings and the denial of her motion for a new trial on damages or additur. In reviewing these trial court decisions, the Appellate Division applied the “abuse of discretion” standard in determining if the lower court’s decisions should be upheld.

Upon appeal, the plaintiff argued that the Day in the Life video should have been admitted because it “was necessary to demonstrate her difficulty in day-to-day activities and the inability to present it deprived her the right to show the jury evidence of pain and suffering.” However, the Appellate Division found that the trial court did not abuse its discretion in excluding the videotape. 

The Appellate Division pointed out that the Sawyer video was taken during her recuperation from her back surgery, instead of day-to-day life post-accident.  Hence, it agreed with the trial court that the focus of the video was her recovery from surgery as opposed to her day-to-day life and that it was not an accurate representation of the continued impact of her injuries.  The Court noted that Plaintiff had testified during her trial regarding the extent of her injuries as a result of the accident and the impact of those injuries upon her.

The Appellate Division also upheld the trial court’s ruling in excluding the recently supplied medical records.  The trial court found that there had been plenty of opportunity to produce the records prior to two weeks before trial.  The appeals court found no abuse of discretion in the trial court’s motion to bar these records at trial.

Further, the Appellate Division upheld the trial court’s denial of the motion for a new trial or additur.  The plaintiff had argued that the verdict was against the weight of the evidence such that it constituted “a clear miscarriage of justice.”  Plaintiff argued that based upon her injuries and prolonged treatment, the verdict of $400,000 was “shockingly low.” Plaintiff pointed out that, considering the total medical expenses incurred, more than $600,000, the jury award was disproportionate.

Again, the Appellate Division upheld the trial court’s rulings on the motion for additur and new trial.  It found that there was no abuse of discretion in the denial of either motion.  The Court noted the trial court’s finding that there was contested testimony and that “given the contested testimony, the jury believes some of what each party said.”  The trial court was satisfied that the jury appropriately considered the information and competing arguments and arrived at a “reasoned judgment” based upon the evidence.  Further, the trial court did not find that the damages were so disproportionate “’such to shock the conscience or to be manifestly ‘[u]njust.’” 

Again, the Appellate Division found no abuse of discretion in the trial court’s ruling to deny the motion for additur and a new trial.  Thus, the appeals court affirmed the trial court’s rulings, leaving the jury verdict in place.

Warrant to Satisfy Judgment Bars Claim to Challenge Ruling Denying Claim for Future Medical Expenses

Plaintiff Linda Brehme appealed a trial court in limine ruling barring her claim for future medical expenses. She had sued defendants Thomas Irwin and New Jersey Manufacturers Insurance Company for personal injuries resulting from an automobile accident. The issue in Brehme v. Irwin, 2023 N.J. Super. Unpub. LEXIS 2401 (App. Div. Dec. 27, 2023) was whether the signed warrant to satisfy judgment barred her ability to appeal the trial court judge’s in limine ruling denying her claim for future medical expenses.

After discovery was completed in this matter, the case proceeded to trial. On the first day of trial, the judge heard an in limine motion by defendant to bar plaintiff’s claim for future medical expenses. The judge determined that plaintiff’s personal injury protection coverage under her automobile insurance policy was not exhausted and, hence, barred as speculative any claim by plaintiff for future medical expenses.

The case was tried before a jury, which awarded plaintiff the sum of $225,000 for pain and suffering and $50,000 for lost wages. After adding interest and costs, the judge entered a judgment. Thereafter, plaintiff’s counsel signed a warrant to satisfy judgment. There was nothing in the warrant that indicated plaintiff’s intent to appeal the judge’s in limine ruling denying her claim for future medical expenses. The judgment was paid and the signed warrant to satisfy judgment was entered on the court’s docket. Thereafter, plaintiff filed this notice of appeal.

The plaintiff argued that the judge made a mistake in denying her claim for future medical expenses. In her appeal, she sought a new trial limited to this issue. She further argued that she was not precluded from proceeding with her appeal, notwithstanding the warrant to satisfy judgment.

The Appellate Division rejected that argument. It noted the well settled law that “a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal.” Here, the defendant elected not to appeal the judgment and agreed to pay the full amount to plaintiff in return for a warrant of satisfaction. The Court noted the case law that “where a party receives and accepts the judgment amount and the adverse party then files a warrant for satisfaction, such conduct expressly acknowledges the validity of the judgment and operates as a waiver of the right to appeal therefrom.”

The plaintiff never advanced, either on the record or in writing, that she intended to continue to pursue her claim for future medical expenses. She accepted and received the full judgment amount from the defendant New Jersey Manufacturers Insurance Company and a warrant to satisfy judgment. The Appellate Division held that the plaintiff’s receipt and acceptance of the full amount of the judgment precluded her appeal challenging the trial judge’s denial of future medical expenses. Thus, the Court dismissed the appeal as moot.

Appellate Division Reverses and Remands No-Cause Verdict for Auto Negligence Claim Following Inadmissible Cross-Examination

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

The issue before the New Jersey Appellate Division in Rodriguez v. Cano, No. A-1561-21, 2023 N.J. Super. Unpub. LEXIS 1733 (App. Div. Oct. 12, 2023) was whether plaintiff Lenny Rodriguez (“Rodriguez”) was denied a fair trial following a no-cause verdict in a damages-only auto negligence case in favor of defendant-driver Stephanie Cano.  Plaintiff contended that defense counsel went too far in cross-examining Plaintiff’s treating physician about a fraudulent medical services action pending against the physician.

In the trial court proceedings, Defendant Cano did not contest liability; rather, the sole issue for the jury to determine was the amount of damages to be awarded to Rodriguez. During trial, Rodriguez’s treating physician testified to his injuries following the accident. The defense counsel soon after cross-examined the physician, focusing on the fact that a major insurance company had a pending fraudulent medical services action against him. During this cross-examination, the defense counsel also noted that Mr. Rodriguez’s treatment was explicitly included in the insurance fraud complaint to provide an example of the physician’s fraud. The defense counsel reasoned that this line of questioning was for the purpose of establishing the physician’s credibility.

The trial court judge realized only after the cross-examination that this line of questioning, which ultimately implied that Rodriguez’s treatment was unnecessary (or even fraudulent), was inadmissible, and, as such, the court instructed the jurors to disregard the testimony. The judge also allowed Rodriguez’s counsel to engage in re-direct to provide the physician the opportunity to rebut and elaborate on the defense counsel’s accusations. During re-direct, Rodriguez’s physician became irate and made several allegations against the insurer for false allegations and bad faith.

Plaintiff’s Rodriguez’s counsel moved for a mistrial, which the trial court denied. The jury returned a no-cause verdict. Rodriguez’s counsel then moved for a new trial, which the trial court also denied. The judge reasoned that any errors were “harmless.” The judge further reasoned that the jury surely “didn’t consider the evidence that I told them … to disregard,” citing the amount of time the jury took to deliberate; because the jury “didn’t come back in five minutes,” the judge purported that the jury did not think of Mr. Rodriguez and the physician as “criminals” or “fraudsters.” Plaintiff Rodriguez appealed.

The Appellate Division first addressed the defense’s cross-examination of the physician and the timing of the trial court judge’s instruction to the jury to disregard the testimony. The Court cited Rule 608 of the New Jersey Rules of Evidence, which prohibits the use of specific instances of conduct through cross-examination in a civil action to attack a witness’s character for truthfulness. The Court quickly determined that defense counsel’s line of questioning was “patently improper” per Rule 608 and that the trial court’s verdict “cannot stand.”

The Court found that, despite the defense counsel’s purported reason for its cross-examination questioning, it was inadmissible and ergo the trial court did correctly instruct the jury to disregard the testimony. The Court further noted that, although the trial court was well-intentioned in allowing the physician the opportunity for re-direct following the defense counsel’s ambush, this decision was ultimately misguided and backfired, as evidenced by the physician’s outburst.

Stating that “the prejudice to [Mr. Rodriguez] … cannot be overstated,” the Appellate Division ultimately determined that the trial court’s denial of Mr. Rodriguez’s mistrial motion and motion for a new trial was improper; as such, the Court held that Plaintiff was denied a fair trial and reversed the trial court’s decisions and remanded the matter back to the trial court for further proceedings.

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