Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

expert

View OTHER BLOGS

Court Dismisses Plaintiff’s Personal Injury Claim Resulting From Trip Over an Outstretched Leg of Kneeling Supermarket Employee

Plaintiff Cvetanka Neceva was selecting an item from a supermarket shelf when she turned and tripped over the partially outstretched leg of a kneeling employee stocking shelves.  She suffered injuries and sued the supermarket, claiming that the outstretched leg of the employee was a dangerous condition.  The issue in Neceva v. Stop and Shop, 2025 N.J. Super. Unpub. LEXIS 2794 (App. Div. Dec. 31, 2025) was whether the outstretched leg of a kneeling supermarket employee could constitute a dangerous or hazardous condition.

The plaintiff had been shopping at a Stop and Shop in Ridgewood and had been selecting an item from a refrigerated aisle.  She was aware of a store employee about one foot from her getting boxes and putting “stuff” in the refrigerator.  She knew that the employee was in a kneeling position, stocking shelves.  After retrieving her item, Plaintiff turned to the right and tripped over the employee’s leg, causing injury.  She does not claim that there was any other condition on the premises that caused her injury.

At the close of discovery, the defendant supermarket filed for a summary judgment.  It argued that the store’s stocking practices were consistent with normal business operations and that the employee’s leg did not create a dangerous or hazardous condition.  The plaintiff had produced a report from a human factors expert who opined that the employee’s leg created a trip hazard and that plaintiff would have had no reason to expect such a hazard in her path of travel.  The defendant also argued that his report constituted an inadmissible net opinion. 

The trial court granted summary judgment to the defendant store.  The trial court judge stated that there was nothing about this situation which could be construed to be outside the normal operation of the supermarket.  The court noted that shoppers could be kneeling down, trying to obtain an item on a lower shelf and moving back and forth.  The judge found that employees moving back and forth and moving things onto shelves and off the shelf would appear to be “nothing outside the normal practice of the supermarket.”  Hence, the trial court judge found that no juror could determine that this situation created a dangerous condition. 

This decision was appealed to the Appellate Division. 

The Appellate Division agreed with the trial court “that the employee’s extended leg did not create a dangerous condition subjecting Stop and Shop to liability because it did not create an unreasonable risk of harm and there was no defect in the property itself.”  The Court further noted that “plaintiff’s failure to heed the presence of the employee who was performing a routine supermarket activity – where there was no visual or lighting impairments – does not create a dangerous condition of the premises.”

Additionally, the Appellate Division held that even if there was a risk of harm, it would have been foreseeable and avoidable by a customer exercising reasonable care.  It found that all conditions were “open and obvious” to a reasonable invitee and, thus, no specific warning was required.  Hence, the Appellate Division agreed that the trial court’s decision was correct in concluding that “the injury suffered was not legally attributable to any breach of duty on the part of Stop and Shop or its employees.”

As for the human factors expert’s opinion, the Appellate Division also agreed with the trial court decision that his testimony was not reliable and that the trial court did not make a mistake in barring his opinion.  The Court noted that the expert referenced “no methodology or scientific materials that were subjected to peer review and publication.”  Further, his conclusions were not supported by “identified standards, scientific data, or industry regulations.”

Finally, the Court held that the trial court was also within its discretion to find that the subject matter – an employee kneeling or extending a leg while stocking shelves in a well-lit open supermarket – was not beyond the common knowledge of lay jurors.”  The Appellate Division stated that “[e]mployees kneeling to stock shelves is a routine, expected sight at supermarkets.” Therefore, the Court concluded that the trial court judge also did not make a mistake in determining that expert testimony was neither necessary nor admissible.

Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Plaintiff’s Negligence Claim Against Casino Security Guard Dismissed Due to Failure to Retain Expert

Plaintiff John Coxe sued Harrah’s, claiming that he suffered injuries as a result of being improperly detained by Harrah’s security team.  He and his girlfriend, Valerie Kloepping, were in the pool area at Harrah’s when his credentials could not be located.  Although they were later located, Plaintiff became belligerent. Eventually, security had to physically restrain and remove him from the pool area.  The issue in Coxe v. Caesars Ent. Corp., 2024 N.J. Super. Unpub. LEXIS 2061 (App. Div. Aug. 29, 2024) was whether the trial court properly dismissed the plaintiff’s negligence claim against Harrah’s due to his failure to retain an expert to establish the standard of care for Harrah’s security guards. 

Plaintiff was a regular patron of Harrah’s for many years.  On the day of their visit, Coxe and his girlfriend went to the resort pool at around 3:00 p.m.  He gave his credentials, which included his driver’s license, room key and Harrah’s reward card, to the bartender to start a tab.  After being at the bar for six hours and consuming many beers, he attempted to close his tab.  The bartender advised plaintiff that his credentials could not be located.  Plaintiff became irate, in part because about one month earlier an unknown person had accessed his hotel room and stole his money.  He was concerned that he had been robbed again, and demanded to speak with a resort supervisor or police.

A Harrah’s security guard responded to the pool area and found plaintiff yelling at the pool manager for 5-10 minutes.  Plaintiff was described as “belligerent, clearly intoxicated and aggressive.”  Security attempted to de-escalate the situation which failed.  Eventually, Coxe’s credentials were located, and they were returned.  However, Coxe did not calm down and Harrah’s security repeatedly asked him to leave the pool now that his credentials had been returned.   Coxe refused and instead continued to argue with the bar staff. 

Harrah’s security guards had to physically restrain him to remove him from the pool area.  They placed him face down on the ground and handcuffed him.  They dragged him to the exit, which friction caused his swimsuit to slip down.  His swimsuit was adjusted, and he was escorted to Harrah’s holding cells.  He was detained there until Atlantic City police responded, at which time he was released and taken to the hospital. 

Coxe then filed suit against Harrah’s under theories of negligence, assault, false arrest and malicious prosecution.   The defendant filed for a summary judgment, which was granted as to the malicious prosecution claim.  The remaining claims proceeded to trial.  At the close of the evidence, but before the jury began to deliberate, Harrah’s moved for a directed verdict as to plaintiff’s negligence claim.  The trial court granted the motion, dismissing the negligence claim.  On the remaining claims of assault and false imprisonment, the jury returned a verdict for defendant and found no cause of action. 

This appeal ensued.  Plaintiff claimed that the trial court should not have granted defendant’s directed verdict motion as to the negligence claim.  Coxe claimed that one of the security guards testified about putting him in an escort hold and Coxe argued that this testimony was inconsistent with de-escalation or reasonable behavior by security. 

However, the Appellate Division found that the trial court did properly grant defendant’s motion.  The Court noted that plaintiff failed to introduce evidence which established a standard of care for Harrah’s security guards.  Further, the Appellate Division noted that there was “no evidence presented at trial from which a jury could infer how a reasonable security guard would act under the circumstances.”

The Court found that there would be no basis for a jury to find that the act of approaching a disorderly patron to remove that person from the premise was negligent conduct.  Further, the Appellate Division pointed out that the plaintiff’s argument that this security guard was unnecessarily aggressive was undermined by his further testimony that his attempted de-escalation had been futile and that plaintiff was intoxicated, belligerent and aggressive and had repeatedly refused requests to leave.

Finally, the Appellate Division rejected the plaintiff’s argument that an expert was not necessary to establish the standard of care because the circumstances in this case are within the ken of the average juror.  The Court rejected that argument and noted that the trial court had previously advised the plaintiff that he may wish to retain an expert to establish the standard of care.  Further, the trial court had advised plaintiff that he was not precluded from questioning the defendant about their policies and their conformance therewith, but the trial court judge did advise the plaintiff that he thought he would need an expert to establish the existence of a duty. 

Thus, the trial court did give plaintiff an opportunity to prove negligence without an expert. However, the plaintiff was unable to establish a duty based upon the testimony at trial.  Therefore, the Appellate Division found that the trial court’s grant of a directed verdict was proper and affirmed the trial court decision, dismissing the negligence claim. 

Court Finds Petitioner Cannot Prove Work-Related Need for Breast Reconstruction Surgery

A misunderstanding of a key fact can doom an expert opinion.  That was the situation in V.S. v. Spectrum360, No. A-0710-23 (App. Div. June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast.  Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast.  V.S. had undergone breast augmentation surgery in 2011.  Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size.  Petitioner’s board certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.”  He sent her for an MRI on September 30, 2021.  Dr. Volshteyn said that the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.”  He attributed the changes in her left breast to the work incident and recommended breast reconstruction surgery and removal and replacement of both breast implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board certified plastic surgeon.  In a key distinction between the two plastic surgeons, Dr. Friedlander noted that petitioner did not have silicone implants, contrary to what Dr. Volshteyn had assumed.  Rather she had saline implants. She pointed out that if Dr. Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant.  When a saline implant is compromised, she said its contents will leak and reabsorb into the body quickly.  But that had not happened in this case.  Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results.  The MRI of the left breast showed evidence of folds in the left breast.   Dr. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”  Dr. Friedlander read the same MRI but she did not notice in her examination any rippling in the left breast.  She added that ripples in breast implants are actually quite common.  She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable.  In her opinion, one implant was inflated more than the other implant, leading to surface irregularities. She concluded that the folds that showed on the MRI had nothing to do with the work injury.

The Judge of Compensation denied the petitioner’s motion, finding that Dr. Friedlander was more credible than petitioner’s expert.  The Appellate Division affirmed the dismissal.  It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone – not saline – implants and that mistake regarding the composition of the implants undermined his overall opinion.” The Court felt that there was sufficient credible evidence for the Judge of Compensation to find Dr. Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured contrary to the opinion of Dr. Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the Court noted that Dr. Friedlander had an explanation for this.  Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis.  Dr. Friedlander also said that petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.

The post Court Finds Petitioner Cannot Prove Work-Related Need for Breast Reconstruction Surgery appeared first on NJ Workers' Comp Blog.

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

What is “Discovery” in a Civil Lawsuit?

Lawyers understand the term “discovery” in the context of a civil lawsuit but laypeople involved in a lawsuit likely do not understand what it means to “conduct discovery.” In general terms, it means exactly as it is defined in plain English, i.e. to find out something. In the context of a lawsuit, discovery is used to find out about the basis of the plaintiff’s claims, as well as the basis of the defendant’s defenses.

Our court rules permit a wide latitude in discovery. A party may “discover” any information or documentation that is either relevant to the subject matter of the lawsuit, either the claims or the defenses, or which is “reasonably calculated to lead to the discovery of admissible evidence.” This information or documentation may not be admissible at trial based upon an evidentiary rule but it may nevertheless be required to be produced in discovery if requested.

Discovery can be made through various formats. Typically, lawsuits start off by requesting the other party to answer written questions called interrogatories. These questions will include topics asking about either the claims or defenses, such as asking about the party’s version of events, persons with knowledge of relevant facts, the plaintiff’s injuries and/or damages, and the identity of experts and their reports.

Additionally, written discovery requests will likely ask for relevant documents that would support the party’s claim or defenses.

After written discovery is exchanged, the parties usually move onto depositions. In depositions, witnesses are asked to give oral sworn testimony about the subject matter of the lawsuit. Some of the same topics asked in written questions are often asked in depositions but in much more detail. It also gives the other party the opportunity to assess the individual’s demeanor as a witness.

Discovery may also include an inspection if the claim involves an incident resulting from the condition of a premises or a piece of equipment or machinery. Experts, if retained, may need to conduct an inspection to prepare an expert report.

If the matter involves a personal injury, medical records need to be obtained during the discovery process to be able to assess the medical condition and extent of injuries suffered by the injured plaintiff. These records are evaluated by defense counsel and then typically utilized to set up a defense medical examination. The plaintiff has treating or examining doctors and the defense will need its own doctor to examine the plaintiff and provide an opinion on what injuries the plaintiff suffered in the incident and if the plaintiff suffered a permanent injury.

Depending on how the accident occurred, after the written discovery and depositions are completed, then the parties decide if other experts need to be retained. In addition to medical experts, other experts may need to be retained who can render opinions on the liability aspect of the case, such as who is responsible for the incident occurring (or not responsible). In addition, there could be other experts as to damages that need to be retained, such as economic or vocational experts.

And, the last discovery typically conducted would be expert depositions. Due to the cost of deposing experts, expert depositions are not routinely conducted.

Once all of this discovery is completed, the lawsuit moves onto its final stage. Settlement is often considered at the conclusion of discovery. If the case does not settle, personal injury lawsuits are subject to mandatory nonbinding arbitration in New Jersey. Additionally, mediation is used frequently as a proceeding to facilitate settlement.

If the case does not settle, the parties can consider filing a motion for summary judgment to try to obtain a dismissal before trial. If not, or if the motion is not granted, at that point, the case would be resolved through a trial.

Plaintiff’s Loading Dock Injury Claim Dismissed Due To Failure To Obtain Liability Expert Report

Plaintiff Paomar Konteh was picking up a shipment at defendant McCollister’s Technical Services Inc.’s warehouse in New Jersey when he suffered an injury attempting to roll the defendant’s computer cabinets from the loading dock onto the back of his truck.  He sued the defendant McCollister for his injuries based upon several theories of liability.  The issue in Konteh v. McCollister’s Tech. Servs., 2022 N.J. Super. Unpub. LEXIS 888 (App. Div. May 24, 2022) was whether the plaintiff’s claim was subject to a dismissal for failure to obtain an expert report as to liability. 

The plaintiff’s accident occurred when defendant’s warehouse employee asked plaintiff to help him load the defendant’s cabinets onto the back of the truck.  The plaintiff was transporting in his truck certain four-wheeled computer cabinets, known as “Netshelters.”  The Netshelters can weigh up to 3000 pounds.   As the two men were attempting to roll the first cabinet from the loading dock onto the back of the truck, it fell on plaintiff, causing him injuries. 

Plaintiff had a number of theories as to defendant’s liability, including whether the ramp was defective, whether the other defendant’s employee did not properly align the ramp, whether the defendant’s employee should not have continued pushing once the wheel became stuck, whether the defendant’s employee pushed the cabinet with too much force, whether the defendant did not have sufficient personnel for the loading, whether or not the defendant heeded warnings and had proper safety measures, and whether the defendant should have had a lift for heavy merchandise.

In answers to discovery, plaintiff stated that he was caused to fall when the wheel of the cabinet became stuck in a crack or separation in the floor.   The defendant produced an OSHA report confirming that the dock plates were in proper working condition in the month prior to the accident.  In his deposition, plaintiff acknowledged that he had previously loaded Netshelters with the assistance of only one other person. 

The truck was connected to the warehouse loading dock via a dock plate that automatically lifted and lowered to form a ramp between the two.  However, even when properly set, it left a gap.  Plaintiff stated that the defendant’s out of state workers (when he made out of state deliveries) always covered the gap with a piece of metal, unlike in New Jersey, where they simply pushed “with power” to get the Netshelter onto the dock plate.  When the Netshelter’s first wheel rolled into the gap, it became stuck and fell on him.

The plaintiff never produced an expert report, despite having discovery extended twice for him to do so.  Following the close of discovery, the trial judge entered an order, barring the plaintiff from serving any liability expert report.  That motion was unopposed.

The defendant filed a summary judgment motion, arguing that the case should be dismissed due to the plaintiff’s failure to produce a liability expert report.  The trial judge pointed out that it is the “plaintiff’s burden to prove that the dock plate used by the defendant was defective or dangerous or substandard.”  The plaintiff’s theory that the elevation difference between the loading dock and the hydraulic dock plate was dangerous or defective did require expert testimony.  It would be “beyond the ken of an average juror to understand what was defective or dangerous.”  Further, plaintiff was aware of the height difference and there was no indication that plaintiff was concerned about a defective condition on the property.  Thus, the trial court judge ruled that the plaintiff’s claim would be dismissed for the failure to produce a liability expert report.

This decision was appealed to the Appellate Division.  The standard utilized by the Appellate Division to review the trial court ruling to dismiss the case due to the failure to produce an expert report was the “abuse of discretion” standard.  Under the case law, an “abuse of discretion occurs when a decision is made without a rational explanation, inexplicably departed from established policies, are rested on an impermissible basis.” 

The Appellate Division pointed out that in most negligence cases, a plaintiff is not required to retain an expert to establish the applicable standard of care.  However, in some cases, a jury would not be competent to supply the standard by which to evaluate the defendant’s conduct and therefore, the plaintiff must present the testimony of a liability expert.  To determine whether a plaintiff must produce a liability expert, a court must consider “whether 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 defendant was reasonable.” 

Here, the Appellate Division agreed with the trial court judge that the plaintiff was required to retain an expert to be able to pursue his claim.  The Court pointed out that “although the average person knows from common experience that a wheel can become stuck in a gap, causing a wheeled object to topple, the average person is not equipped to consider the physics of loading unusually heavy objects, and the point at which a gap between flooring, or changes in elevation, become dangerous.”  Further, because the plaintiff advanced different theories of liability, it could not be “reasonably expected” for a jury to be able to decide liability based upon those different theories.

The Court also noted that, in a different context, an accident from pushing a heavy object over irregular flooring might not require expert testimony.  But here, OSHA had found nothing deficient in the dock ramp and the plaintiff had used this ramp many times before to maneuver a Netshelter onto the back of his truck with just one person to help him.  Because the plaintiff was uncertain as to what caused the accident, and his description conflicted with the defendant employee’s description and involved trucking industry standards, the Court found that the need for an expert report and expert testimony was clear.  Thus, the Appellate Division ruled that the judge’s decision was not an abuse of discretion and affirmed the decision, dismissing the case. 

Capehart Blogs

Litigation Blog
Equitable Tolling Does Not Apply to Claims Against Public Entities Under the Tort Claims Act’s Statute of Limitations
Firm News
Firm Launches 2026 Summer Law Clerk Program
Firm News
Capehart Scatchard Presents 27th Annual Blaine E. Capehart Writing Award to Rutgers Law Graduate

Equitable Tolling Does Not Apply to Claims Against Public Entities Under the Tort Claims Act’s Statute of Limitations

Snow Tubing is the Equivalent of Skiing Under the New Jersey Ski Act

Appellate Division Upholds Finding of HIB for Comments Made in Snapchat Group Chat

Subscribe to Blog Updates

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage data privacy dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Open Public Records Act Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter