20th annual medical malpractice update … · medical malpractice and senior lawyers special...
TRANSCRIPT
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20th
ANNUAL MEDICAL
MALPRACTICE UPDATE
Moderator/Speaker Michael A. Ferrara, Jr., Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney The Ferrara Law Firm, LLC (Cherry Hill; Philadelphia, PA)
Speakers Honorable John E. Harrington, P.J.Cv. (Mt. Holly) William L. Brennan, Esq. The Law Office of William L. Brennan (Shrewsbury) Paul M. da Costa, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Snyder Sarno D’Aniello Maceri & da Costa LLC (Roseland, Bridgewater, Hackensack) Alexis Aloi Graziano, Esq. Buchanan Ingersoll & Rooney PC (Princeton) Jonathan H. Lomurro, Esq., LL.M. Lomurro Munson Comer Brown & Schottland, LLC (Freehold, Toms River, East Brunswick)
In cooperation with the New Jersey State Bar Association Medical Malpractice and Senior Lawyers Special Committees S0505.16
Peter L. MacIsaac, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Chasan Leyner & Lamparello, P.C. (Secaucus) Bruce H. Nagel, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Nagel Rice, LLP (Roseland) Julie E. Nugent, Esq. Weiss & Paarz, P.C. (Northfield) Mary Ann C. O’Brien, Esq., LL.M. Crammer, Bishop & O’Brien, P.C. (Absecon, Medford) Francisco J. Rodriguez, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. (Jersey City) Debra Urbanowicz-Pandos, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney The Pandos Law Group, LLC (Far Hills)
© 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520.
Table of Contents Page Helpful Trial Tips – How to Effectively Use Computers and iPads at Trial Francisco J. Rodriguez 1 Trial by iPad: The Hardware You Will Need 2 Using a Laptop Computer for Trial 8 Apps for Trial With the iPad 8 Applications for Use on a Laptop 11 Excerpt from Trial Brief 13 Does Meehan v. Antonellis, 226 N.J. 216 (2016) Finally Clarify the Affidavit of Merit Issue? Mary Ann C. O’Brien, Esq. LL.M. 17 Intro 17 History Leading Up to Meehan v. Antonellis, 226 N.J. 216 (2016) 17 Prior to the Affidavit of Merit Statute 17 Affidavit of Merit Statute 17 Ferreira v. Rancocas Orthopedic Assocs. 17 Patients First Act (“PFA”) 18 Buck v. Henry 18 R. 4:5-3 18 Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) 18 Facts and Procedure 18 Issues for Supreme Court 19 Analysis 19 Holding 20 Summary 21 Questions Remaining After Meehan: Does It Finally Clarify the AOM Issue? 21 Charitable Immunity & Practice in Federal Court Julie E. Nugent, Esq. 23 New Jersey Charitable Immunity: The Basics 23 New Jersey Charitable Immunity and Federal Clinics 24 Important Discovery on the Issues of Charitable Immunity 25 Federal Tort Claims: General Practice Tips 26 New Jersey Charitable Immunity: A Case Law Summary 27 “Charitable Purposes” Case Law 27 “Hospital Purposes” Case Law: Kuchera 33 NJ Charitable Immunity in Federal Court: A Case Law Summary 36 Attachments Sample Supplemental NJCIA Interrogatories 41 Notice to Produce #2 47
In Limine Motions in Medical Malpractice Trials Bruce H. Nagel, Esq. 53 Spada v. Vasireddy Jury Charge 55 Jury Verdict Form 59 Scafidi Jury Charge 61 Scafidi Jury Verdict Form 71 Flood v. Aluri-Vallabheneni 77 Estate of Kotsovska v. Liebman 91 Kranz v. Schuss, et al. 111 Nevins, et al. v. Pan, et al. 121 Estate of D’Avila v. Hugo Neu Schnitzer East, et al. 127 Hottenstein v. City of Sea Isle City, et al. 155 Putting Civility Back in Civil Litigation Debra V. Urbanowicz-Pandos, Esq. 167 Bounds of Representation – Evolution of Diligence 167 Civility, Professionalism and Respect 167 Aggressive Advocacy vs. Zealous Advocacy 167 Core Principles of Civility 168 Future of Civility in New Jersey 168 Q: Can Doctors Set the Standard of Care for Nurses? A: It Depends… PowerPoint Slide Alexis Aloi Graziano, Esq. 169 Attachment Lauckhardt v. Jeges, et al. 171 Review of 2016 Cases Not Involving AOM William L. Brennan, Esq. 181 Relevant Cases Bernetich, Hatzell & Pascu, LLC v. Medical Records Online, Inc. 185 Castello v. Wohler, M.D. 191 Jarrell v. Kaul, M.D., et al. 203 Kleine v. Emeritus at Emerson, Brea Emerson, LLC, et al. 217 McCormick v. State of New Jersey 223 T.T. v. Cohen, M.D., et al. 229 Cho, et al. v. Trinitas Regional Medical Center and NJ Heart, et al. 231 Worthy v. Kennedy Health System, et al. 237 About the Panelists… 247
HELPFUL TRIAL TIPS – HOW TO EFFECTIVELY USE COMPUTERS AND IPADS AT TRIAL
Francisco J. Rodriguez
This paper serves as a primer for everything technological that you will need in order to be able to use an iPad or computer at trial for displaying demonstrative evidence. This paper will be followed by a trial brief for the court that you can use on the use of demonstrative evidence and technology, which assembles the limited case law that exists on the use of such items.
In addition, if your adversary does not agree to the use of a particular exhibit, you should seek out a certification from one or more of your experts attesting to the accuracy of the anatomy presented in the exhibit or to the accuracy of whatever it is that the exhibit is purported to show. Of course, the preferred method of making sure that there is no issue with presenting particular demonstrative evidence at the trial is to have these items ready when you depose the defendants concerning discovery and have them admit that the particular item of demonstrative evidence is accurate. A certification from your expert as to a particular item of demonstrative evidence should only be used in a pinch when you have come up with a new demonstrative evidence item after discovery is over and before trial. Finally, it is always worth presenting the court with a trial brief that interweaves the demonstrative evidence into the brief. This allows the court to gain a full understanding of your case and how these demonstrative items help you present it.
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Trial by iPad: The Hardware You Will Need
The first item you will need is an iPad. As of the time of the writing of this paper, I recommend the iPad Pro with the 256 gigabytes of memory.
The reason for the iPad Pro is that the screen is larger and resolution is better than the smaller iPads. For most trial presentation items, this is not that important. However, it is quite common that you may want to display two pages of medical records side by side in a medical malpractice case. With the smaller iPads, it is difficult if not impossible to read the text on your screen when the documents are displayed side by side. This makes it difficult in making certain that you are displaying the right documents to the jury before actually displaying them on the projector screen or flat panel. Having a keyboard case for the iPad Pro is helpful but not an absolute necessity for trial. I would certainly recommend it. The reason for having the maximum amount of memory is for the potential that you may have videotaped testimony to store and present for your trial. Video takes up a lot of memory. So it is best to get the most memory available, which is presently 256 gigabytes.
Second, you need to have an adaptor cable and dongle to connect your iPad to the projector or television flat panel you are going to use. Below is a picture of the HDMI version of the dongle:
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Below is a picture of an HDMI cable:
! There are two types of dongles, an HDMI dongle and a VGA dongle. This is a picture of a VGA dongle:
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The one you will want will depend on the device to which it is being connected. If you are buying devices from scratch, you should definitely purchase HDMI-compatible devices because the resolution is better. Besides the dongle, you will need lengthy cable between the dongle and your output display device, whether that is a projector or flat panel. If you are going to use an Apple TV box (described below), you can get away with a much shorter cable. Otherwise, you should probably purchase one that is at least 10 feet long, even longer if you are using a flat panel. Even if you plan on using your iPad wirelessly, you should have these cables at the ready just in case you have a problem with your wireless connection.
Third, you need to purchase an Apple TV adapter.
The Apple TV box will allow you to display wirelessly. The one-time setup is easy. You will still need a connection between the Apple TV and your flat panel or projector, but having the Apple TV available means that you can position your iPad wherever you want in the courtroom because there will be no connection between the iPad and the Apple TV. You will be connected wirelessly. If you have an old Apple TV, it is worth purchasing a new one because the old Apple TVs also required you to have a wireless Ethernet hub in order to establish the wireless connection between your iPad and the Apple TV. For at least the last 2 years, the new Apple TVs do not require the wireless network Ethernet hub. You can connect directly from your iPad to the Apple TV. Then,
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you will need a cable that connects your Apple TV to your projector or flat panel, and that will be either an HDMI cable or a VGA cable depending on your output device. Again, if you can get a hold of an HDMI output device, you will be better off.
Fourth, you will need an output device. This is either a projector and projector screen or a flat panel TV.
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! If you are going to use a flat panel TV, you should purchase one that has HDMI connectors and that has the capability of flipping the image so that the flat panel can be turned on its side. Many of the documents and exhibits that we display are set up in portrait mode where the original image was 11 inches tall by 8 ½ inches wide. Even on a gigantic flat panel TV, these documents still appear relatively small if displayed with the TV sitting in its normal landscape fashion. You will also need a cart that will permit
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you to wheel the flat panel into position as well as wheel it into the courthouse and courtroom. This is one of the disadvantages of using a flat panel instead of a projector and projector screen. You will almost definitely need someone to assist you in getting the equipment into the courthouse and with positioning everything. Whereas you can get away without assistance if you use a projector and projector screen.
If you are going to use a projector and projector screen, which is my preference, you should spend on the highest lumens projector you can afford. As of the time of the writing of this paper, you can buy a very nice LED projector for around $1,200.00. The higher lumens is important because this determines the brightness of the light being emitted from the projector. You want to have the brightest image possible, particularly considering that you will not necessarily be able to control how bright the courtroom is. You want to purchase an LED projector versus a DLP projector or other types of projectors because the LED image is better and the bulb is often rated to last 20,000 to 40,000 hours. So it is unlikely to break down or need replacement throughout its lifetime. They also run cooler, and the most expensive ones do not even use a fan to cool them. So you will not have to worry about a fan whirring that will distract jurors or annoy the court. Casio makes very lightweight, high-end LED projectors.
For a projector screen, you want to have a screen that measures at least 72 inches by 72 inches. There are a lot of screens sold today that are much wider than they are taller. This is not as useful for courtroom purposes because most of the items displayed will be upright or portrait rather than landscape. If the screen is smaller than 72 inches, it is a lot lighter to carry around, but it will not allow you to be able to display an image that is larger than life. The great thing about having a 72-inch square projector screen is that on things like medical records, everything will be easy to read for the court and the jury. If you are playing video, it is larger than life. It makes for a great advantage over the flat panel.
You can have a screen larger than 72 inches. I do have a 96-inch screen but have never actually used it. The problem with a 96 inch screen is that transporting it is difficult. It is essentially so big that it is difficult to fit in a regular car and it is difficult to lug in and out of places including elevators. So keep that in mind. Many of the county courthouses now have projector screens that you can use so that you do not have to bring your own. So you should inquire as to what they have. Take note, however, that many of the projector screens in the county courthouses are not so useful. Either they are the widescreen type that does not serve our purposes well, or they are built into the courtroom, and drop from the ceiling or elsewhere, and are positioned in a suboptimal location. Also, on any given day, somebody else may need to use it. So you should have your own screen at the ready. The purchase of a 72 by 72 inch projector screen that is portable should cost about $120.00 at the time of the publication of this paper. Again, the great advantage of using the projector with projector screen over the flat panel is both the ease of portability and positioning along with the ability to display larger than life images, which will be bigger than what could be displayed on the biggest flat panel that you could lug into court.
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You will also want to have some sort of stand on which you can rest your projector, iPad or computer. I recommend the heavy duty stands from a company called inStand.com.
The heavy duty tripod stand with additional tray attachments runs under $400.00 and is worth every penny. The tripod stand is portable, lightweight, and very stable so that it is not likely to knock over a projector or your iPad if someone accidentally bumps in to it. The additional tray attachments permit you to be able to have placed in one tripod both your projector, iPad and laptop computer if need be.
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The foregoing sums up the hardware you would need for using the iPad at trial. The only additional items would be if you were going to get more fancy and seek to display on multiple flat panels or projector screens, you would of course need to double the number of projector screens, projectors, cables and/or flat panels and you would need a signal splitter that would permit you to transmit the images to more than one output device.
Using a Laptop Computer for Trial
Essentially, all the equipment referenced in the section for using the iPad at trial is necessary or useful in the context of using a laptop at trial with the exception of, of course, the iPad. It is particularly valuable to make sure the laptop you will use for trial has the capability of connecting wirelessly with the Apple TV so that the laptop can be used wirelessly. The standard trial presentation software for use with a laptop, Trial Director, being the gold standard, is much more complicated to use and will require someone to assist you even if you are very computer savvy. One of the wonderful advantages of being able to use the iPad is that even if you are not very computer savvy, you can often use the iPad for trial presentation purposes without anyone assisting you. In addition, you should make sure you have a laptop with an extended battery life or purchase an extended battery for your laptop. In the case of an iPad, since the iPad 2 came out, the battery life is so improved that it will be rare for you to run out of battery life during the course of a trial day even if you never plug it in at all from the time court starts until the end of the day.
Apps for Trial with the iPad
For a presentation of most demonstrative evidence in court using an iPad, you will want to have either TrialPad or TrialDirector. He is the TrialPad screen:
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TrialDirector
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TrialPad and TrialDirector permit you to easily organize and display your documents and demonstrative evidence and label exhibits and print them when necessary. Yours truly has only used trialPad at trial. It has certainly been absolutely stable, never having crashed or presented any sort of glitch. The anecdotal information I received regarding users of TrialDirector is that it has had some glitches, which have caused it occasionally to crash at trial. It is unknown to the undersigned at the present time whether these glitches have been fixed.
Regardless of which app you use, you want to make sure that the documents/exhibits are organized in some fashion that is totally familiar to you. If you have everything organized where you can find it, no different than if you have a bunch of documents in court sitting in archive boxes, it will make the use of the iPad for trial presentation look so easy and seamless that everyone will be impressed, particularly the jury and the court. It is also important to have everything that you may contemplate presenting in court already loaded onto the application before trial and premarked, which you can do from within the application, and it is useful to actually have a premarked set of exhibits and exhibit list to provide to the court clerk. TrialPad certainly makes this process relatively easy.
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DepoView is a great app for displaying videotaped deposition testimony in court. The video transcript can be sent to the text so that recall of specific excerpts of the video transcript can easily be pulled up in court, and you can create clips in advance to have them ready to be called up.
Keynote is Apple iPad version of PowerPoint and comes standard with the iPad and serves as a useful tool for opening and summation. As always, remember that you are required to provide your adversary with a printout of such items in advance of opening statement or summation. Failing to do so is irreversible error.
Timeline 3D is a timeline tool that allows you to present three-dimensional timelines, which are very useful in opening and summation for presenting a chronology of events to the jury. Timeline 3D easily allows you to add graphics to each point on the timeline so that the jury is not just looking at a bunch of text. It very much makes it easier for a jury to absorb a lengthy story of what happened in a particular case.
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Applications for Use on a Laptop
TrialDirector is the standard application for use in a laptop. It is very stable, but it is not easy to use and will certainly require someone else to operate the laptop while you do opening or the cross-examination or direct of a witness.
THE END
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POINT I
COUNSEL FOR PLAINTIFF PERMITTED TO USE DEMONSTRATIVE EVIDENCE AND VISUAL AIDS IN PLAINTIFF’S OPENING STATEMENT AND SUMMATION.
Plaintiff’s counsel not only seeks to rely upon medical illustrations, photographs,
timelines, Keynote (PowerPoint) presentation, and/or other demonstrative aids in
support of Plaintiff’s case in chief, but Plaintiff also seeks to rely upon same in counsel’s
opening statement and closing argument.
The use of demonstrative evidence in opening and closing violates no court rule
or case law. Cf. Cross v. Robert E. Lamb, 16 N.J. Super. 53 (App. Div. 1960) and
Renzo v. Jacobs, A-2890-96T5 (App. Div. 1997). This unpublished opinion is annexed
hereto as Exhibit 27. In fact, New Jersey courts have a long-standing tradition of
allowing attorneys to introduce demonstrative evidence in opening and closing when the
proffered demonstrative evidence aids the jury in understanding relevant aspects of
their case. Cross v. Robert E. Lamb, supra. (plaintiff’s use of blackboards and other
demonstrative aids to illustrate damages are permissible and are frequently used by trial
counsel). The Appellate Division specifically held that the law in the State of New
Jersey is that “anything which counsel has the right to argue or a legitimate
interpretation thereof, or an inference from the evidence, he is free within the discretion
and control of the trial judge to write down upon the blackboard, and conversely what
counsel may not argue, he may write on the board.” Cross, supra. at 56. As such, the
Appellate Division has held that the use of demonstrative evidence is generally
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accepted and the only limitation is the discretionary supervision of the Trial Court. Id. at
73.
In a later unpublished decision, the Appellate Division reaffirmed its holding that
demonstrative evidence is permissible during Plaintiff’s opening statement and closing
argument. See Renzo, A-2890-96T5 at 4 (App. Div. 1997) (Exh. 27). In Renzo, the
Appellate Division held that attorneys may use demonstrative evidence in opening
statements as long as the proffered evidence is relevant, pertains to the merits of the
case and is approved by the trial court judge. Id. at 4. Further, the Court reasoned that
the trial court should permit demonstrative evidence at trial as long as the proffered
evidence is not misleading, pertains to the subject matter testimony in the case and is
helpful in explaining the controversy to the jury. Id. at 4. For this reason, the Appellate
Division found no error in the trial judge's allowing defense counsel to rely upon x-rays
and visual aids during his opening statement.
Most recently, the Appellate Division in State v. Rivera, __ N.J. Super. ___, 2014
WL 5042454 (App. Div. 2014), held that a Powerpoint presentation used by the
prosecution was misconduct and unduly prejudicial to the defense. However, the
Appellate Division specifically held that what is important is the message or the content
contained with the Powerpoint presentation, not the medium:
Our courts have not yet addressed the use of PowerPoint presentations during opening statements or summations in criminal trials in a published opinion. Other courts have, however, considered the matter.
The Nevada Supreme Court has concluded that a PowerPoint, “as an advocate's tool, is not inherently good or bad” and that “its propriety depends on content and application.” Watters v. State, ––– Nev. ––––, 313 P.3d 243, 247 (2013). The Court further determined that a PowerPoint accompanying an opening is permissible if “the content is
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consistent with the scope and purpose of opening statements and does not put inadmissible evidence or improper argument before the jury.” Ibid.
We fully agree that the content, not the medium, is important. That view is consistent with the approach our Supreme Court has taken with respect to other technological advances used in connection with trial court proceedings. See, e.g., State v. Miller, 205 N.J. 109, 122, 13 A.3d 873 (2011) (directing that in “responding to a request to review testimony, the trial court's focus should be on the proper controls and limits needed to ensure a fair proceeding, not the medium used to create a record”).
Faced with a pre-presentation challenge to use of a PowerPoint in an opening, a court should apply the law governing opening statements. In some respects, use of PowerPoints has potential to advance the interests of fairness in opening statements because the court may direct removal of prejudicial material before a prosecutor displays a slide to the jury. That opportunity should not be lost.
Rivera, 2014 WL at 4-5. A copy of this opinion is annexed hereto as Exhibit 28. Thus,
Plaintiff’s counsel may use demonstrative evidence in his opening statement and
closing argument in this case, and the particular medium being employed is not what
matters rather than the content with the medium. The proffered demonstrative evidence
will be in the form of medical illustrations, blowups of certain medical records and other
documents produced during discovery, photographs, a timeline, a Keynote presentation,
which is PowerPoint for the iPad, a projector and projector screen, and/or other aids,
which will be helpful in explaining the matter to the jury. This will also include
illustrations of the Time Unit Rule pursuant to R. 1:7-1 for summation. Of course,
plaintiff’s counsel will provide copies of the demonstrative evidence intended to be used
in opening to his adversaries in advance. The demonstrative evidence that counsel for
plaintiff plans to perhaps use is annexed hereto as follows:
Exhibit 29: Anatomical Diagram of Decorticate Posturing;
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Exhibit 30: Anatomical diagram that depicts area of numbness from epidural
anesthesia for labor and delivery;
Exhibit 31: Comparisons of the two sets of Nurse Espiritu’s notes with
individual entries blown up in call-outs;
Exhibit 32: Photo of Narcan Vial;
Exhibit 33: Photo of Duramorph Vial;
Exhibit 34: Anatomical Diagram of Cardiovascular System;
Exhibit 35: Anatomical Diagram of Pathophysiology of Pulmonary Embolism;
Exhibit 36: Anatomical Diagram of Saddle PE;
Exhibit 37: Anatomical Diagram of Pulmonary Emboli;
Exhibit 38: Photo of Fentanyl Vials;
Exhibit 39: Photo of Pulse Oximeter;
Exhibit 40: Photo of Ambu Bag;
Exhibit 41: Anatomical Diagram of Endotracheal Intubation;
Exhibit 42: Photo of Epinephrine Vial;
Exhibit 43: Photo of Sodium Bicarbonate Vial;
Exhibit 44: Anatomical Diagram of Cesarean Delivery Cross-Section;
Exhibit 45: Anatomical Diagram of Brain Stem;
Exhibit 46: Anatomical Diagram of Placement of Epidural Needle.
Accordingly, as long as this Court does not find the proffered evidence
objectionable, there is no reason to bar the use of demonstrative evidence in counsel’s
opening statement or summation.
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"Does Meehan v. Antonellis, 226 N.J. 216 (2016), Finally Clarify the Affidavit of Merit Issue?"
Mary Ann C. O'Brien, Esq., LLM
Intro: Ted Talks = 18 minutes I. History leading up to Meehan v. Antonellis, 226 N.J. 216 (2016) II. Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) III. Questions remaining after Meehan. I. History leading up to Meehan v. Antonellis, 226 N.J. 216 (2016) A. Prior to the Affidavit of Merit Statute 1. Courts had a "fairly liberal approach" 2. Carbone v. Warbuton, 11 N.J. 418 (1953) "lack of specialty may disparage his qualifications but does not render him incompetent to state an opinion." 3. There was a "low threshold": Sanzari v. Rosenfeld, 34 N.J. 128 (1961) anesthesiologist testifying as to dental standards of care; Rosenberg by Rosenberg v. Cahill, 99 N.J. 318 (1985) medical doctor testifying as to standard of care for chiropractor. B. Affidavit of Merit Statute: NJSA 2A:53A-26 to -29. (Enacted 1995) 1. "Licensed Person" defined: NJSA 2A:53A-26 2. Affidavit required in certain actions against licensed persons: NJSA 2A:53A-27 [original, had no exception for "medical malpractice" actions] 3. Sworn statement in place of affidavit permitted: NJSA 2A:53A-28 For defendant's failure to provide records. C. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) - requires Affidavit of Merit Conference within 90 days of defendant's Answer.
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D. "Patients First Act" ("PFA"): NJSA 2A:53A-37 to -42 (Enacted 2004) 1. "Legislative Findings": NJSA 2A:53A-38 2. PFA Amended the AOM Statute: 3rd Sentence NJSA 2A:53A-27 3. "Section 41" - Patients First Act: NJSA 2A:53A-41 a) Expert Testimony - on appropriate standard of practice or care b) Criteria "Enhanced Requirements" - incorporates: American Board of American Specialties www.ABMS.org/…boards/specialty American Osteopathic Association www.osteopathic.org…/specialty-subs for Specialists who are Board Certified for Specialists who are not Board Certified for General Practitioners c) Waiver - 4. Affidavit of Non-Involvement: NJSA 2A:53A-40 5. NJSA 17:30D-22: Prohibits increase in premiums if dismissed within 180 days of Answer E. Buck v. Henry, 207 N.J. 377 (2011): Requires Defendant to indicate in his Answer the specialty in which he was involved when rendering treatment. F. R. 4:5-3: Requires Defendant to include specialty in Answer. II. Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) A. Facts and Procedure: 1. Plaintiff Stephen Meehan consulted Defendant Peter Antonellis, DMD, an Orthodontist, seeking treatment for "sleep apnea". Dr. Antonellis fitted the patient with a device to reduce his symptoms. Patient noted that wearing the device at night caused his teeth to shift, and his symptoms worsened. Dr. Antonellis tried a new device, to no avail. Mr. Meehan filed a "dental malpractice" action against Dr. Antonellis for shifting his teeth and worsening his condition.
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Dr. Antonellis's Answer did not identify his specialty & whether his treatment involved that specialty. Plaintiff served an AOM from a dentist who specialized in Prosthodontics with 20 years experience of treating sleep apnea. The AOM opined the SOC deviated for "oral appliance therapy." Defendant filed a Motion to Dismiss, claiming the AOM must be from a "like- qualified" dentist/orthodontist as Section 27 requires AOM from like- qualified professional, who practices in the same specialty or subspecialty as the defendant - Here, an Orthodontist. 2. Defendant was a Board Certified Orthodontist. Defendant made a device to treat Plaintiff for "sleep apnea", which Orthodontists can do. 3. Plaintiff's Affiant was a Board Certified Prosthodontist, who specialized in treatment of "sleep apnea" for 20 years. 4. Trial Court dismissed Plaintiff's Complaint. App. Div. affirmed - Dental Malpractice is different than Medical Malpractice, but Section 41 requirements for Medical Malpractice applies to Section 27 AOM. Therefore, the AOM was insufficient. B. Issues for Supreme Court: 1. Do "enhanced requirements" (like-qualified) of Section 41 of PFA apply to "Dentists"? Answer: No. Section 41 PFA applies only to "Physicians" and only in "Medical Malpractice Actions". 2. If not, does AOM Section 27 require a like-qualified standard for affiants in "other negligence actions against licensed professionals, including Dentists? Answer: No. Section 27 only requires 1) an appropriate license; And 2) particular expertise in the general area or specialty involved in the action. There is no textual support for like-qualified requirements of Sec 41 C. Analysis: 1. How did Court find PFA Section 41 applies only to "Physicians" and only in "Medical Malpractice actions"? a) Intent of Legislation: i. Examination of text of AOM Statute and PFA w/ Section 27
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ii. 2004 added 3rd sentence to Section 27 and provides "in all other cases" iii. Section 41 a & b require affiant to be a licensed "physician" iv. The plain language of Section 41 states the like-qualified standards apply only to "physicians" v. Sect 41a incorporates "American Board of Medical Specialties" & "American Osteopathic Assoc" - which involve only "physicians" vi. Section 41b for "general practitioners" describes "physician's activities" b) Purpose of PFA & its Legislative History (due to ambiguity) i. Retirement and relocation of "physicians"- see Section 38. ii. Dramatic escalation of Medical Malpractice Liability Insurance Premiums causing shortage of qualified "physicians" iii. Problems identified & measures adopted - apply only to "physicians" 2. How did Court find Section 27 only requires 1) license & 2) expertise in area involved in the action? (which "expertise" can be evidenced by 1) Board Certification or 2) devotion to practice for at least 5 years.) a) New 3rd sentence applies to "physicians in medical malpractice" b) No "textual support" for Section 41 like-qualified requirements in other negligence actions, such as dentists. D. Holding: 1. "Enhanced requirements of PFA Section 41" for Affiant in AOM against physician in medical malpractice action apply only in medical malpractice actions. 2. "All other actions" against a licensed professional, including a Dentist, Section 27 of AOM Statute prescribes qualifications of Affiant. Like- credentialed standard governing "physicians in medical malpractice actions" do not apply.
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E. Summary: 1. Must look to see if the Defendant is 1) a Physician 2) in a Medical Malpractice action If so, "enhanced requirements" of Section 41 applies. 2. If 1) Defendant is not a Physician or 2) It is not a Medical Malpractice action then, Section 27 of AOM Statute governs the AOM requirements III. Questions remaining after Meehan: Does it finally clarify the AOM issue? 1. Meehan stands for the proposition that the like-credentialed requirements of Section 41 apply only if: 1) Defendant is a physician 2) in a Medical Malpractice action 2. So, do the "enhanced requirements" of Section 41 govern the qualifications of the Affiant if: 1. Defendant is a Podiatrist? (Look to list of Licensed Persons / not physician) 2. Defendant is a Chiropractor? " 3. Defendant is a Nurse? " 3. Defendant is a Health Care Facility? " 4. Defendant is a Physical Therapist? " 5. Defendant is a Pharmacist? " 6. Defendant is a Veternarian? " 7. Defendant is an Optometrist? Not listed in "Licensed Persons" Not listed in ABMS or AOA Does not go to Medical School Question becomes: What's a Physician? (Wikipedia: Role & meaning vary around the world.) One can Google: "Is a _________ considered a Physician?" If listed within ABMS or AOA = Safe! If not, arguments can be made, but would be extremely tough.
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3. If Defendant wants to ensure that the "enhanced requirements of PFA Section 41" are fully applied, he should be extremely careful and specific in his or her Answer -
"Defendant is a Physician. At the time of the alleged claim, Defendant specialized, and was practicing1, in the field of (name specialty and/or subspecialty as listed in ABMS or AOA) and [if applicable] was Board Certified in that specialty and/or subspecialty. His or her treatment of plaintiff involved that specialty and/or subspecialty."
4. Plaintiffs should look to Defendant's Answer to be guided as to the type of Affiant that should not be contested. 5. www.NJdoctorlist.com - can research physician's specialties and provides the State of NJ recognizes the specialty boards that are members of ABMS, AOA, RCPSC (Royal College of Physicians & Surgeons of Canada) or CFPC (College of Family Physicians Canada) 6. PFA Section 41's "enhanced requirements" do not apply to: a) medical practitioners other than physicians b) experts who are called to testify about proximate cause c) experts testifying about damages
1 See Nicholas v. Mynster, 213 N.J. 463 (2013) (Expert must have the same type of practice and possess the same credentials as defendant. Expert must practice in the same specialty as defendant.)
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New Jersey Charitable Immunity: The Basics
The New Jersey Charitable Immunity Act (“NJCIA”), N.J.S.A. 2A:53A-7, provides nonprofit entities
organized exclusively for charitable purposes with absolute immunity. It also provides nonprofit entities
organized exclusively for hospital purposes the protection of a $250,000 damages cap. N.J.S.A. 2A:53A-8.
When either of these defenses are raised, the question is whether the entity was organized “exclusively” for
charitable or hospital purposes. The New Jersey Supreme Court has recently stated that “exclusive,” within
the meaning of the NJCIA, means “sole” or “single” purpose. Kuchera v. Jersey Shore Family Health, 221
N.J. 239 (2015).
In New Jersey, charitable immunity is an affirmative defense, and the defendant bears the burden
of persuasion. Abdallah v. Occupational Center of Hudson County, Inc., 251 N.J. Super. 280 (2002). In order
to be entitled to absolute immunity as a private, nonprofit charity, a defendant must prove that it is (1) a
nonprofit entity (2) organized exclusively for charitable purposes, and that (3) plaintiff was a beneficiary of
its charitable works at the time of injury. N.J.S.A. 2A:53A-7.
The New Jersey case law is clear that whether an entity is organized “exclusively for charitable
purposes” is a fact-sensitive inquiry. Parker v. St. Stephen’s Urban Development Corp., Inc., 243 N.J. Super.
317 (1990); Abdallah v. Occupational Center of Hudson County, 351 N.J. Super. 280 (2002). When a
nonprofit entity claims it is entitled to absolute immunity because it was organized exclusively for charitable
purposes, the court must conduct a searching examination of the entity’s aims, origins, and method of
operation to determine whether the dominant motive is charity, or some other form of enterprise. Parker v.
St. Stephen’s Urban Development Corp., Inc., 243 N.J. Super. 317 (1990). This analysis must specifically take
into account the entity’s sources of funding. Abdallah v. Occupational Center of Hudson County, 351 N.J.
Super. 280 (2002)
On the other hand, in order to be entitled to the $250,000 damages cap available to private, nonprofit
hospitals, the defendant must prove that it is (1) a nonprofit entity (2) organized exclusively for hospital
purposes and (3) plaintiff was a beneficiary of its hospital services at the time of injury. N.J.S.A. 2A:53A-8.
In determining whether an entity was organized “exclusively for hospital purposes,” courts will now be
guided by the recent Supreme Court decision of Kuchera v. Jersey Shore Family Health, 221 N.J. 239 (2015),
which expanded the definition of a hospital.
Charitable Immunity & Practice in
Federal Court Julie E. Nugent, Esq.
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New Jersey Charitable Immunity and Federal Clinics
When filing a medical malpractice claim, plaintiffs need to take the appropriate steps to determine
if any of the treatment at issue took place at a federal clinic; if so, the target defendant will likely be deemed
to be a “federal employee.” If this is the case, the United States will be substituted into the case as the proper
defendant, and the case will be kicked to federal court following the filing of the appropriate Notice of Tort
Claim.
In cases involving federally qualified health centers (FQHC), a specific form of federal clinic, the
parties should be aware that the United States has recently asserted the affirmative defense of charitable
immunity under the New Jersey Charitable Immunity Act.
In the last year, the United States has taken the position that a FQHC is both a nonprofit entity
organized exclusively for charitable purposes and, alternatively, a nonprofit entity organized exclusively
for hospital purposes. Therefore, the United States argues that it should be able to assert state charitable
immunity as a defense, since it is entitled to raise any defense that the FQHC or its individual employees
would be entitled to raise had they been sued as private individuals under like circumstances. See 28 U.S.C.
1346; 28 U.S.C. 2674; and Lomando v. United States of America, et al., 667 F.3d 363 (D.N.J. 2011). See also
Young v. United States of America, et al. 152 F. Supp. 3d 337 (D.N.J. 2015); DuPont v. United States of
America, et al., --- F.Supp.3d.--- (2016).
While no federal district court has yet to rule that a FQHC is entitled to absolute immunity as a
charity, at least one district judge in Camden has found that one FQHC – CAMCare – was organized
exclusively for “hospital” purposes and is entitled to the $250,000 damages cap. See Young v. United States
of America, et al. 152 F. Supp. 3d 337 (D.N.J. 2015). Since the inquiry is fact-sensitive and depends on the
individual FQHC involved in each case, neither plaintiffs nor defendants should baldly accept the Young
decision as binding on any case involving other FQHCs.
It is in the best interest of both plaintiffs and co-defendants to properly prepare for motion practice
on the issue of charitable immunity in any case in which plaintiff claims a federally deemed employee of a
FQHC deviated from the applicable standard of care. Proper preparation is done through comprehensive
discovery requests, such as interrogatories, notices to produce, and deposition, and a careful understanding
of FQHCs, generally, and the specific FQHC involved.
Recent Cases Deciding the Issue of Charitable Immunity With Regards to FQHCs:
Young v. USA, 152 F.Supp.3d 337 (2015)
denied absolute immunity; granted limitation on damages
Dupont v. USA, --- F.Supp.3d --- (2016)
denied absolute immunity; limitation on damages pending additional discovery
Parikh v. Gibbens, et al., 3:14-cv-07685-PGS-DEA
pending decision following oral argument
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Important Discovery on the issue of Charitable Immunity
Is FQHC organized exclusively for charitable purposes?
Certificate of Incorporation
Bylaws
Letter from IRS Deeming 501(c)(3) Status
Audited Financial Statements
Form 990s
CRI-300R (or CRI-200) Forms
Meeting meetings of Board of Directors and Subcommittees
Policy/Procedures re: Billing of Patients
UDS Reports
HRSA Site Visit Reports
Grant Applications (Federal, State, Local Government; Private)
Grant Awards (Federal, State, Local Government; Private)
Documents pertaining to Fundraising
Annual Reports
30(b)(6) Deposition testimony of all representatives with knowledge of
the foregoing
Is FQHC organized exclusively for hospital purposes?
Certificate of Incorporation
Bylaws
UDS Reports
HRSA Site Visit Reports
Grant Applications (Federal, State, Local Government; Private)
Annual Reports
Affiliation, Referral etc. Agreements/Contracts with Hospitals
Residency Program Agreements
30(b)(6) Deposition testimony of all representatives with knowledge of
services provided
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Federal Tort Claims: General Practice Tips
The Federal Tort Claims Act provides a vehicle
by which claims may be brought against the United
States for the wrongs committed by federal government
employees. The basis for any federal tort claim can be
found at 28 U.S.C. 1346, 2671-2680.
The basic statute of limitations in federal court is
two years. However, any civil action for money damages
filed against the United States must be presented to the
appropriate federal agency for administrative
disposition before an action is filed in federal court. This
is referred to as the Notice of Claim requirement. The
federal courts provide a form – Standard Form 95 – which
can be used for filing a Notice of Claim.
Under Notice the of Claim requirement, notice
must be sent to the agency that employs the target
defendant. If suit is filed before the Notice of Claim
requirement is met, the case will be dismissed. 28 U.S.C.
2675. Once a proper Notice of Claim is filed, the agency
has six months to issue a formal denial of the claim. If
the agency fails to issue a formal disposition within the
six month period, this has the same effect as a formal
denial. After a formal denial is issued or the six month
period has passed, whichever is sooner, plaintiff is free to
file suit in district court. However, plaintiff is still bound
by the two-year statute of limitation.
When initiating a lawsuit in federal court, all
complaints must be filed electronically. N.J. Ct. R. 5.2(3).
This also applies to all motion papers, including the
notice of motion. N.J. Ct. R. 7.1(b)(2).
When engaging in motion practice, attorneys
should refer to N.J. Ct. R. 7.1, which lays out guidelines
for submissions. For example, sur-replies to motion
papers cannot be submitted without permission from the
court. N.J. Ct. R. 7.1(d)(6). Parties opposing a motion are
entitled to one automatic extension without consent of
their adversary. N.J. Ct. R. 7.1(d)(5). Unlike N.J. State
Court, the federal court rules provide strict formatting
guidelines. See N.J. Ct. R. 7.2.
Pursuant to Fed. R. Civ. P. 16, an initial
conference must be held within 60 days of the Answer
being filed. N.J. Ct. R. 16.1(a)(1). Parties shall meet to
generate a proposed discovery plan at least 21 days prior
to the initial conference. N.J. Ct. R. 26.1(b)(2); Fed. R. Civ.
P. 26(f). Any case management disputes that cannot be
resolved amongst counsel must be brought to the court
by teleconference or letter prior to a formal motion being
filed. N.J. Ct. R. 16.1(d)(1); Fed. R. Civ. P. 37.1(a)(2).
Other helpful Local Rules to be aware of:
33.1 Interrogatories
34.1 Notice to Produce
36.1 Requests for Admission
37.1 Discovery Motions
56.1 Motion for Summary Judgment
78.1 Oral Argument on Motions
Federal Rules of Civil Procedure: 2015 Amendments
The most recent amendments to the Fed. R. Civ. P. were made in December 1, 2015. The effect of the amendments can be
summarized by the amendment to Rule 1, which places onus on parties “to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Discovery timelines were tightened and the bases for objections were
limited. Here is a summary of the most noteworthy amendments:
4(m): time to serve the summons and complaint reduced to 90 days
16: the time to enter scheduling orders was reduced to 90 days after defendant is served or 60 days after defendant
has made an appearance
26(b)(1): the requirement that discovery be reasonably calculated to lead to the discovery of admissible evidence was
removed, and now parties may obtain relevant discovery “proportional to the needs of the case” (boilerplate “not
proportional” objections will not avoid discovery)
34: parties cannot make boilerplate objections to discovery requests and must state the grounds of their objection with
specificity
37(e): there are now uniform standards for spoliation sanctions and curative measures, including curative jury
instructions or even dismissal
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New Jersey Charitable Immunity: A Case Law Summary
“Charitable Purposes” Case Law
Parker v. St. Stephen’s Urban Development Corp., Inc., 243 N.J. Super. 317 (App. Div. 1990).
Judges Pressler, Long, and Gruccio.
Plaintiff sustained injuries in a fall on the sidewalk of defendant. Defendant was an urban development
company created by a local church pursuant to the National Housing Act. Defendant was a 501(c)(3)
nonprofit entity for federal tax filing purposes, and its Board of Directors was made up of volunteers from
the community. Its certificate of incorporation indicated the purpose was to work for the health, welfare
and morals of the community and assist low and moderate income persons to obtain housing. Similarly, its
bylaws indicated its mission was to undertake the building of low to moderate income housing
development to provide decent and standard housing for the local community and to solicit, receive and
hold money and other property to make such disbursements thereof as to be determined in the best interest
of the National Housing Act. Sixty percent of payments received by defendants came from HUD subsidies,
with the remainder coming from the private market. All of the defendant’s operations were governed by
federal regulations. Defendant filed a motion for summary judgment on the basis that it was entitled to
absolute immunity because it was a nonprofit entity organized exclusively for charitable purposes.
The trial court granted defendant’s MSJ. Plaintiff appealed. The Appellate Division reversed, holding that
defendant was not an entity organized exclusively for charitable purposes within the meaning of the statute.
The court found that defendant was not created to lessen the burden on the government but to obtain as
much funding from the government as possible and to operate a project exclusively with that funding. As
such, it was no more entitled to charitable immunity than the government itself. The court further found
that the defendant was not a private charity that depended for its support on charitable contributions, but
rather was the quasi-public sponsor of a federally funded housing project. The court noted that the fact that
an entity is deemed to be a 501(c)(3) nonprofit entity for federal tax exempt purposes does not equate it to a
charity; nor does the fact that it performs a social service; rather, these are only two factors the court should
consider in determining whether an entity is organized exclusively for charitable purposes. The court also
highlight the fact that defendant did not engage in any fundraising, and the fact that it had a volunteer
Board of Directors was merely a quid pro quo for federal funding, as having a volunteer Board was a
requirement under HUD regulations.
The court held that where an entity is expressly conceived, created, and operated to serve purely as a conduit
for federal funds in strict conformity with federal regulations, its denomination as a charity for immunity
purposes is incorrect, notwithstanding its benevolent aims. Under the circumstances, the court concluded
that application of the legislative policy insulating a wrongdoer from liability to an innocent victim, which
was embodied in the NJCIA, was not warranted.
In so holding, the court also stated that in any case where a defendant entity claims it is entitled to absolute
immunity on the basis that it was organized exclusively for charitable purposes, what is required is an
examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims,
origins, and its method of operation in order to determine whether its dominant motive is charity of some
other form of enterprise. The inquiry in each case should focus on the essence of the entity itself.
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Morales by Martinez v. New Jersey Academy of Aquatic Sciences, 302 N.J. Super. 50 (App. Div. 1997).
Judges Long, Skillman, and A.A. Rodriguez.
Appellant minor slipped and fell while on a school-sponsored outing to respondent aquarium. Appellant
filed a tort action against respondent to recover for her injuries. Respondent filed a third party complaint
against the Board of Education for contribution and indemnification and moved for summary judgment
based on its charitable status and the provisions of the NJCIA. The trial court denied appellant’s motion to
amend and granted summary judgment to respondent. On appeal, the Appellate Division affirmed and
held that respondent was a non-profit entity organized for educational purposes and was entitled to
immunity under the statute. The acceptance of some government funds did not transform respondent into
a governmental instrumentality because respondent received a substantial amount of its funding from
charitable donations and non-government sources. The state’s support of respondent and limited control
over its operations was not so dominant as to forfeit its charitable character. The fact that entertainment or
recreation was part of the overall educational experience did not preclude respondent from claiming
charitable immunity.
*This case is not instructive on the issue of whether an entity is entitled to absolute immunity on
the basis that it was organized exclusively for charitable purposes. However, the United States likes
cherry pick quotes from this case for the proposition that “Acceptance of government funds and
some measure of government control does not transform a private nonprofit into a governmental
instrumentality”; thus, the United States relies on Morales to argue that the mere fact that an FQHC
receives some government support does not alter is nature as a charity for immunity purposes if it
performs charitable services and is essentially supported through charitable contributions. This
language should be ignored as pure dicta, as Morales was decided on the basis that the entity at
issue was organized exclusively for educational purposes. However, at best, this dicta discussion
makes clear that at a minimum, a nonprofit entity claiming absolute immunity as a charity must
make some showing that it is “essentially supported through charitable donations.”
Bieker v. Community House of Moorestown, 169 N.J. 167 (2001).
Portiz, Stein, Coleman, Long, Verniero, LaVecchia, and Zazzali.
Plaintiffs sued the nonprofit defendant for personal injuries the plaintiffs’ minor son sustained from a fall
on defendant’s premise. Defendant was a nonprofit entity that operated and rented athletic facilities and
meeting rooms to the public. Plaintiff belonged to a men’s basketball group that rented a gymnasium
operated by defendant, and his son was injured from falling down a fire escape on the premises. Defendant
was a registered 501(c)(3) corporation for federal tax exempt purposes. It obtained no financial assistance
from the government. Nineteen percent of defendant’s revenues came from rental fees to nonprofit entities,
however, it was unclear how much came from rental fees to for profit entities. Defendant filed a motion for
summary judgment on the basis that it was organized exclusively for charitable purposes, and often ran an
operating deficit.
In this case, the Court had to determine whether the NJCIA applied to an independent nonprofit entity that
derives part of its funding from renting facilities to for-profit entities.
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The trial court held that the defendant was entitled to absolute immunity under the NJCIA on motion for
summary judgment. The Appellate Division reversed the trial court’s granting of summary judgment. The
New Jersey Supreme Court reversed the judgment of the Appellate Division, and remanded the matter to
the trial court for further proceedings.
However, the Supreme Court stated that when activities designed to raise funds in support of a charitable
organizations’ core purposes generally contribute to those purposes, they do not change the charitable
nature of the entity. When non-charitable activities become the “dominant motive” of the organization,
immunity under the NJCIA is lost. The Court further held that:
1. An entity qualifies for charitable immunity under the NJCIA if; (1) it was formed for a non-profit
purpose; (2) it was organized exclusively for religious, charitable, or educational purposes; and (3)
it was promoting such objectives and purposes at the time of the injury to plaintiff who was then a
beneficiary of the charitable works.
2. Our case law recognizes that a wide range of charitable organizations that meet the social and
recreational needs of a community, and generally promote the public welfare, are deemed to have
charitable purposes. When those same facilities are rented to for-profit entities, however, the
charitable status of the organization may come into question. Where such use becomes the dominant
use of the organization, the organization is no longer qualified for charitable immunity protection.
In the case of defendant, it is not clear from the record the extent to which defendant’s facilities are
used by for-profit entities. The Court therefore remanded the matter to the trial court to determine
the extent of such use and whether it became a dominant use of the organization.
3. Should the trial court determine that the dominant motive of defendant is charity; the remaining
question would be whether or not plaintiff was a beneficiary under the NJCIA. The Supreme Court
determined that as a companion of his father and a spectator at his father’s basketball game, plaintiff
was a beneficiary of the defendant’s charitable purposes.
Abdallah v. Occupation Center of Hudson County, Inc., 351 N.J. Super. 280 (2002).
Judges Pressler, Parillo, and Coleman.
Plaintiff, on behalf of her mentally incompetent daughter, was a client of the defendant, which provided
employment and vocational counseling services. Defendant’s sources of funding was a combination of
government grants and payments from the private market. Approximately fifty percent of the defendant’s
revenue came from payments made by the state. Defendant did not actively solicit private contributions,
and less than one-half percent of defendant’s funding came from private donations. Defendant filed a
motion for summary judgment on the basis that it was entitled to absolute immunity under the NJCIA.
The Appellate Division reversed the granting of summary judgment which dismissed the complaint and
remanded the case to the trial court for further proceedings.
The Appellate Division first indicated that charitable immunity is an affirmative defense, and therefore
defendant bears the burden. Thereafter, the Court stated that the traditional analysis in Parker applied, and
specifically stated that such an analysis must take into account the entity’s source of funds. While the court
found that the daughter was the vocational service’s beneficiary and the vocational service was a nonprofit
organization, given that its basic purpose was to provide vocational opportunities for vocationally disabled
persons by acting as an employment agency, sheltered workshop, and vocational counselor, the court held
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that defendant not organized exclusively for religious purposes and also did not seem to function as
exclusively educational. To qualify as “charitable,” the vocational service had to show support from
charitable donations and/or trust funds, since the original purpose of the NJCIA was to restore charitable
immunity as it existed at common law. At common law, the doctrine was intended to avoid diverting
charitable trust funds to non-charitable purposes and to protect and encourage private philanthropy in
order to ensure continued provision of beneficent services and to relieve the government of the burden of
providing them. Here, the court found that defendant’s sole source of funding was a combination of
government grants and private market payments for services rendered by clients. The Court also held that
less than one-half percent of funding made up of private contributions was “too insignificant” to have any
effect on charitable status. In the face of such minimal amount of private donations, the Court found that
defendant clearly did not depend in any way on private contributions; rather, it functioned similar to a
quasi-governmental sponsor, similar to the defendant in Parker, and therefore the purposes underlying the
NJCIA did not apply.
Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333 (2003).
Long, Portiz, Coleman, Verniero, LaVecchia, Zazzali, and Albin
Defendant charity and plaintiff member petitioned for certification of a judgment by the Superior Court,
Appellate Division, which affirmed dismissal of the member’s personal injury action against defendant
church based on charitable immunity. The New Jersey Supreme Court reversed and remanded the
dismissal of plaintiffs’ claims against the defendant charity.
This appeal considered whether an association organized exclusively for educational purposes is required
to demonstrate some level of income from charitable donations to qualify for immunity pursuant to the
NJCIA. Plaintiff was injured while attending a meeting of the Mother’s Center, a nonprofit group of parents
and expectant mothers. Members paid an annual fee as well as participation fees, but nonmembers were
also welcome. At the time of plaintiff’s accident, defendant had a policy of opening its doors to social
outreach projects with community purposes and allowing them to use the facilities to conduct meetings.
Permission to use a room could be obtained from the church council for a $15 fee, which was based on the
cost of keeping the building open. However, no group was refused permission if they could not afford the
fee.
The Supreme Court held that defendant was entitled to charitable immunity because it was a nonprofit
entity organized exclusively for religious purposes, and at the time of the accident it was promoting its
objectives in respect of plaintiff who was a beneficiary thereof. Since the Mothers’ Center is organized
exclusively for educational purposes, no further financial analysis was required.
*Like Morales, this case is not instructive on the issue of whether an entity is entitled to absolute
immunity on the basis that it was organized exclusively for charitable purposes since the case was
decided up front on the basis that defendant was organized exclusively for educational purposes,
which does not require any Parker like analysis. However, plaintiffs should be aware of this case
because the United States also likes to cherry pick quotes from this case. In dicta, the Court stated
that the purposes underlying charitable immunity are broader than simply preserving charitable
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trust funds and include the encouragement of altruistic activity. On the flip side, the Court also
stated that the performance of a useful service does not pro se compel the corollary that an
organization is engaged in charitable activity. Additionally, the Court also held that in assessing
who is a beneficiary of the works of a charity, that notion must be interpreted broadly. Again, since
this is mere dicta, it should not be considered binding on the issue of whether an entity was
organized exclusively for charitable purposes.
Kominos v. Bancroft Neurohealth, 417 N.J. Super. 309 (2010)
Reisner, Sabatino, Alvarez
Plaintiff-decedent’s parents sued for wrongful death of their son, who was a resident at defendant’s group
home for the mentally disabled. Plaintiff died on an outing to 7-Eleven. Defendant described its home as a
family-style household shared by 6-8 clients supervised and trained by a house manager and round the
clock professional staff. Defendant filed motion for summary judgment, in part, pursuant to the NJCIA.
The trial court denied the motion, finding that there remained genuine issues of material fact as to whether
defendant was promoting religious, charitable or educational purposes at the time of plaintiff’s death.
Defendants filed a motion for reconsideration, which was also denied. Defendants appealed.
On appeal, the Appellate Division held that defendant was entitled to charitable immunity on the basis that
it was organized exclusively for educational purposes.
*Like Morales and Ryan, this case is not instructive on the issue of whether an entity is entitled to
absolute immunity on the basis that it was organized exclusively for charitable purposes since the
case was decided up front on the basis that defendant was organized exclusively for educational
purposes, which does not require any Parker like analysis. However, plaintiffs should be aware of
this case because of the extensive discussion in dicta by Judge Sabatino on what is required for a
defendant entity to be entitled to absolute immunity as a private charity. After ruling that
defendant was organized exclusively for charitable purposes, Judge Sabatino went on to right that
Abdallah did not adopt a bright line rule for the amount of private contributions that is required
for an entity to be deemed “organized exclusively for charitable purposes.” Rather, Judge Sabatino
stated that it is “the sheer magnitude” of total private contributions that matters. In this case,
defendant – which was deemed to be educational institution – received $1.1M in private donations
for the relevant time period, which only constituted 2% of defendant’s total revenue. Despite such
a small percentage, Judge Sabatino ruled that the “sheer magnitude” of defendant’s $1.1M in private
contributions warranted a conclusion contrary to Abdallah, even though the issue in Abdallah was
not before the Court.
Klein v. Bristol Glen, 2010 WL 3075582 (N.J. App. Div. 2010)
Coleman, Graves.
This is an unpublished case which is instructive only in that it is clear that plaintiffs are entitled to discovery
on the issue of charitable immunity before summary judgment on the issue is appropriate. The case also
includes a clear discussion of the Parker and its progeny, discussed herein.
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Walters v. YMCA, 2016 WL 4262550 (2016).
Plaintiff, fitness center member, slipped and sustained injuries on the premises of defendant fitness facility.
Defendant was a 501(c)(3) entity for federal tax exempt purposes. Its certificate of incorporation indicated
its purposes was to promote moral, spiritual, physical and mental welfare of young men and boys of the
community. The bylaws stated a similar mission. Defendant offered various programs on a sliding fee scale
and collected membership dues. Total fees collected during the relevant time period were $1M. Defendant
also offered several programs free of charge through the award of scholarships. In addition, defendant
functioned as an emergency shelter for adults and youths, and operated with a $2M private endowment,
with approximately 10% of its funding coming from private donations. Total operating expenses for the
relevant time period were $2M. Defendant organization filed MSJ seeking absolute immunity under the
NJCIA. The motion was denied and this appeal followed.
The Appellate Division held:
1. An organization bears the burden of proving it is entitled to charitable immunity
2. The defendant organization could not rely on prior determinations regarding charitable status of
other entities to demonstrate its own entitlement to charitable immunity.
3. When a nonprofit undertakes an activity ancillary to its stated charitable purposes, the related
function is subject to charitable immunity if the ancillary program is integral to the charitable
purpose
4. Immunity is not automatic because an organization declares its purposes as charitable; rather, the
decision is conditional and heavily dependent on the specific facts and circumstances presented.
Likewise, an organization’s nonprofit status does not automatically qualify it to invoke the defense
of charitable immunity – the Court must scrutinize the charter, daily operations, relationship to other
entities, extent to which the organization lessens the burden on the government, and operational
funding
5. If an entity’s non-charitable activities become the dominant motive, it would be found to have
altered its originating purposes as some other form of enterprise, making immunity inapplicable.
On the other hand, a qualifying entity does not lose statutory immunity merely because it charges
money for its services, unless it makes a profit or collects fees for services totally unrelated to its
organizational purposes
6. The defendant organization was not an institution organized exclusively to pursue religious
purpose, and thus was not entitled to immunity on that ground.
7. A genuine issue of material fact existed as to whether the defendant organization was organized
exclusively to pursue educational purpose, thus precluding summary judgment on the immunity
claim.
8. A genuine issue of material fact existed as to whether the defendant organization was organized
exclusively to pursue charitable purpose, thus precluding summary judgment on the immunity
claim.
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“Hospital Purposes” Case Law: Kuchera
Kuchera v. Jersey Shore Family Health Center, 221 N.J. 239 (2015).
Cuff, Rabner, LaVecchia, Albin, Patterson, Fernandez-Vina, and Solomon
In this appeal concerning a premises liability action, the Court addresses whether a health care facility is
entitled to charitable immunity pursuant to N.J.S.A. 2A:53A-7, or the limited liability afforded to nonprofit
entities organized exclusively for hospital purposes pursuant to N.J.S.A. 2A:53A-8.
Plaintiff slipped and fell sustaining injuries while attending a free eye screening conducted by the New
Jersey Commission for the Blind and Visually Impaired (Commission) at the Jersey Shore Family Health
Center (FHC).
FHC is a nonprofit ambulatory care center in the Meridian Health hospitals system located on the main
hospital campus. FHC provides care for those “who are uninsured, underinsured, without a primary care
physician and/or who lack access to regular medical care.” Meridian Health and its constituent hospitals
were organized as a nonprofit organization within the meaning of Section 501(c)(3) of the IRS. Meridian
Health was organized, generally, to operate hospitals and health care facilities, to promote or carry on
educational and research activities, to render necessary health care regardless of the patient’s ability to pay,
and to promote and protect the health and welfare of the general public.
Meridian Health filed a MSJ that was denied, but renewed their motion on the day of trial and the court
concluded that Meridian Health defendants were entitled to absolute immunity under NJCIA. The
Appellate Division affirmed and the New Jersey Supreme Court reversed the judgment of the Appellate
Division and remanded the matter to the trial court for further proceedings. The Supreme Court held:
1. The Legislature’s codification of charitable immunity was not universal: certain personnel were not
immune from liability for negligence, and nonprofit hospitals were granted a cap on damages from
liability for negligence rather than immunity. N.J.S.A. 2A:53A-7 to -13.1.
2. To emphasize the distinction between certain entities, the NJCIA addressed nonprofits organized
exclusively for charitable, religious, or educational purposes, and those organized for hospital
purposes in separate sections. N.J.S.A. 2A:53A-7 and -8. The most prominent distinction between
nonprofit entities organized exclusively for charitable, religious, or educational purposes and
nonprofits organized exclusively for hospital purposes is that the former are immune from liability,
while the latter are subject to liability for negligence, albeit with a cap on its damages. The immunity
bestowed by the NJCIA extends to the buildings and other facilities actually used for the purposes
of the qualifying organization, such as a hospital. Further, N.J.S.A. 2A:53A-10 instructs that the
NJCIA is remedial legislation and should be liberally construed so as to further the legislative
purpose of immunity.
3. A hospital is subject to limited liability under section 8 if it is formed as a nonprofit corporation,
society, or association, is organized exclusively for hospital purposes, was promoting those
objectives at the time plaintiff was injured, and the plaintiff was a beneficiary of the activities of the
hospital.
4. The term exclusively used in sections 7 and 8 of the NJCIA have been interpreted as meaning single
or sole. Recently, the Court discussed the meaning of the phrase "organized exclusively for hospital
purposes" in the context of considering whether an offsite facility owned and operated by a nonprofit
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hospital was exempt from local property taxation. Hunterdon Med. Ctr. v. Twp. Of Readington, 195
N.J. 549 (2008). Relying on Hunterdon, there the Court emphasized that the analysis of the term
hospital purposes starts with the accepted concept of a hospital as a place where a patient can obtain
twenty-four hour continuous care. Notwithstanding this, the Court recognized that the analysis
must focus on the core aspects of a hospital’s purposes. The Court further stated that "the core
aspects of a hospital's purposes are to address the needs of all of the types of patients that a hospital
is expected to serve," and further held that the site of the delivery of the service does not detract from
its inclusion as a hospital purpose.
5. The modern hospital is thus a place where members of the community not only seek emergency
services but also preventative services, therapy, educational programs, and counseling, and the
conception of “hospital purposes” must expand to reflect the many health-related pursuits of the
modern hospital. Hospitals now provide comprehensive services beyond acute inpatient care, and
our conception of “hospital purposes” needs to expand to reflect the many health-related pursuits
of the modern hospital. The provision of a variety of inpatient and outpatient services is consistent
with the nature of a modern hospital as a facility that engages in care for more than the acutely ill or
injured. Accordingly, to advance the legislative mandate that the NJCIA be liberally construed to
effectuate its purpose, the Court focuses on the many medical pursuits of a modern New Jersey
hospital.
6. The modern hospital in New Jersey may also include a teaching component. The education of
medical students, physicians, nurses, and other health professionals is a significant core hospital
purpose.
7. The modern hospital also provides medical care to those who can pay for the care and to those who
cannot. In fact, every acute care hospital in this State is required to provide care to anyone who seeks
care without regard to the ability to pay. The provision of charity care is a core function of a hospital.
8. Whether a nonprofit entity, whose certificate of incorporation and by-laws provide that it is
organized exclusively for charitable, religious, educational, or hospital purposes, actually conducts
its affairs consistent with its stated purpose often requires a fact-sensitive inquiry.
After reviewing the principles applicable to a modern hospital, the Court concluded that the Meridian
Health defendants, and specifically the Medical Center and its Family Health Center, are governed by the
more specific expressions of legislative intent regarding hospitals articulated in N.J.S.A. 2A:53A-8.
Specifically, the Court noted that defendant was a member of Meridian Health system, and Meridian and
its constituent medical centers engaged in educational and research programs, coordinated and sponsored
activities to improve physical health and welfare of persons living in and around the geographic region,
and provided inpatient and outpatient care. The Court further noted that defendant provided numerous
specialized free clinics to the community, and provided a variety of inpatient services, as well as outpatient
services related to medical services to be administered on an inpatient basis at defendant’s facility.
Thus, the Meridian Health defendants were subject to liability for negligence applicable to nonprofit
corporations, associations, and societies organized exclusively for hospital purposes with any damage
award capped at $250,000. The Supreme Court found that the Appellate Division's judgment to the contrary
— specifically that the Meridian Health defendants were immune from liability pursuant to N.J.S.A.
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2A:53A-7 — utilized a restrictive concept of a hospital that did not account for the multi-function nature of
the modern hospital and its role in the provision of health care in this society.
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NJ Charitable Immunity in Federal Court:
A Case Law Summary
Nazarro v. United States, 304 F.Supp.2d 605 (2004).
Opinion by Judge Irenas
Defendant Civil Air Patrol (CAP) filed a MSJ asserting immunity from suit under NJCIA, and defendants
U.S., the Dept. of the Army, and the Dept. of the Air Force filed a MSJ and a motion to dismiss plaintiff
husband and wife’s personal injury claims.
The husband was a senior member of the CAP and was injured during a recreational outing arranged by
the CAP for its members at an army base. Plaintiffs claimed that the husband suffered “serious injuries”
involving a spinal fracture, which required multiple surgeries to correct. The U.S. and its agencies (the
Army and the Air Force) asserted that summary judgment was appropriate under the Federal Tort Claims
Act, 28 U.C.S.C. § 2679, and the New Jersey Landowner Liability Act (LLA).
The district court agreed and found that the Air Force and Army were federal agencies and thus not proper
defendants under the FTCA.
Further, the district court determined that, as a matter of law, CAP was a charitable organization under the
NJCIA, noting that government funding made up 30% of total revenue, while private donations made up
25%, which was a sufficient amount of private charitable donations to find that CAP was a charity.
Approximately 45% of total revenue came from membership fees. In light of this, the Court found that CAP
behaved no differently than most charities in cobbling together sufficient funding from a variety of sources
to achieve its goals.
Finally, the district court granted summary judgment in favor of the U.S. because the recreational outing
was not a part of formal training, and the record clearly indicated that CAP members, including the husband,
were engaged in “outdoor sport” and entitled to immunity under the LLA.
The CAP’s MSJ was granted; the U.S., the Army, and the Air Force were likewise granted summary
judgment; and plaintiffs’ complaint was dismissed with prejudice.
*The USA relies heavily on this case for the proposition that all FQHCs behave like charities,
because they are merely “cobbling together sufficient funding from a variety of sources to achieve
its goals.” However, looking at the facts of Nazzaro, it is important to note that its charitable
donations nearly equally that of government funding and private market payments (in the form of
membership fees). Often times, FQHCs have less than 10% of funding from the government and/or
private contributions with 80% or more coming from private market payments. Also, often times a
FQHC’s total operating expenses are less than the amount of payments received solely from the
private market for services rendered. These are important distinguishable facts.
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Mottola v. City of Union City, 2006 WL 2177405 (2006).
Cavanaugh
Plaintiff, a Union City police officer, filed a complaint alleging ADA violations and defamation against
defendants Greenville Hospital and Meadowlands Hospital Medical Center due to a search of his apartment
and a car accident that led to charges of driving while intoxicated.
The court held that defendants met their burden of showing that they are a charitable organization
organized exclusively for hospital purposes by submitting affidavits from Senior Vice President of
Administration for Greenville and Senior Vice President and Administrator for Meadowlands. The court
also found that plaintiff qualifies as a beneficiary of services from both institutions since plaintiff received
treatment. Defendants’ motion regarding NJCIA was granted.
Lomando v. United States, 667 F.3d 363 (2011).
Greenberg, McKee, Fuentes
Plaintiff, the administratrix ad prosequendum of a decedent’s estate, sued defendants, the United States and
a medical center, in the United States District Court for the District of New Jersey for medical malpractice
and wrongful death stemming from the wrongful conduct of volunteer physicians at a free clinic. The
district court granted summary judgment in favor of defendants and the administratrix appealed.
The decedent sought treatment at the free clinic and the medical center, which allegedly failed to diagnose
her non-Hodgkins lymphoma. The court of appeals held that, under the Federal Tort Claims Act, the United
States was liable to the same extent that the free clinic would have been for the conduct of the volunteer
physicians who worked there. The Court found that the USA stands in the shoes that a similarly placed
employer of the physicians would stand and answer for the wrongful conduct of the employees. However,
in so holding, the Court included a foot note stating, “…it seems that equating the USA to a free clinic, rather
than a hospital or practice group that employs physicians for compensation, is the only way to ensure that
the USA’s liability under the FTCA is the same as that of a “private person” in similar circumstances. If the
USA is treated as a paying employer, the entire statutory predicate of this case, that the physicians were
deemed employees precisely because they were volunteers at a free clinic, must be ignored, and, further,
the USA’s liability would be expanded beyond that of a similarly placed entity, simply by virtue of
application of the FTCA.” Thus, the Court held the USA was entitled to assert any immunity that would
have been available to any similarly situated employee or the employer had they been sued under like
circumstances, as well as any other defense the USA itself is entitled to assert independently.
Here, pursuant to 28 U.S.C.S. § 2674, the Court held U.S. could assert a charitable immunity defense under
the New Jersey CIA because both a similarly situated private employer (free clinic) and the volunteer
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physicians would have been entitled to such a defense if sued under like circumstances. Thus, since the
free clinic and its volunteer employees would have been entitled to absolute immunity, the USA is too
Hottenstein v. City of Sea Isle City, 981 F.Supp.2d 292 (2013).
Irenas
This wrongful death and survivorship action arises out of an accident where decedent, while intoxicated,
fell off a public dock into the ocean and ultimately died. Defendants Atlanticare Regional Medical Center,
Atlanticare MICU Medics at Base 3, and Atlantic City Medical Center’s filed a Motion to Limit Damages
under the N.J. CIA.
The Court found that to fall within the protections of the CIA, a defendant must demonstrate two elements:
1) that the defendant is a charitable organization that is organized exclusively for hospital purposes and 2)
that the plaintiff was a beneficiary of its services. New Jersey courts have heeded the Legislature’s
instruction to liberally construe the definition of beneficiary so as to afford immunity to qualifying entities
in furtherance of the public policy for the protection of such entities. To determine beneficiary status, the
institution pleading immunity must have been engaged in the performance of the charitable objectives it
was organized to advance.
Defendants produced affidavits with supporting documentation demonstrating that they are nonprofit
entities organized for hospital purposes. This was sufficient to demonstrate that defendant was organized
exclusively for hospital purposes. In addition, defendant was a 501(c)(3) entity for tax purposes. Further,
the purpose of the entities, as expressed in the Articles, was to operate nonprofit hospital entities and
undertake all the activities necessary to accomplish that purpose. Defendants were called to the scene of
the injury to pronounce decedent dead, and the court held that that is sufficient to create a beneficiary status
under New Jersey law. Defendants’ Motion to Limit Damages was granted.
Young v. United States, 152 F.Supp.3d 337 (2015).
Kugler.
Plaintiff filed a Federal Tort Claim against defendants after, due to alleged malpractice, her baby was
delivered with Cerebral Palsy and a permanent heart murmur. The target defendant was CAMCare, a
FQHC, and its physicians, who were deemed to be federal employees. The government sought to dismiss
the complaint against it on jurisdictional grounds, asserting absolute immunity under the NJCIA. In the
alternative, the government sought a limitation on damages, asserting it was a hospital under the expanded
definition set forth in Kuchera. Simultaneously, the USA sought to amend its Answer to include NJCIA
defenses in the event the court denies their Motion to Dismiss.
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The court asserted that the NJCIA and case law did not require that a defendant be owned or operated by a
hospital in order to be subject to the NJCIA damages cap.
Initially, the court held that the government’s Motion to Dismiss was denied with prejudice with respect to
the absolute immunity defense. The court held that absolute immunity clearly did not apply according to
the statute if a nonprofit is organized “exclusively for hospital purposes,” since exclusive meant “sole” or
“single” purpose. In so holding, the Court noted the following:
1. CAMCares stated purposes was to provide comprehensive health services to underserved families,
regardless of insurance status or ability to pay, which is the very definition of New Jersey Charity Care,
a recognized core hospital function
2. CAMCare’s mission statement in its Certificate of Incorporation and Bylaws only referenced the
provision of health services – any mention of billing and fundraising to further its mission was not
indicative of “charitable purposes,” but rather was merely a basic function related to its hospital purposes
In light of the foregoing facts, the Court held that, at best, CAMCare was entitled to a limitation on damages
on the basis that it was organized exclusively for hospital purposes, but it was clearly not organized
exclusively for charitable purposes. The Court further held that Kuchera’s expansion of the definition of a
modern hospital resulted in a complimentary narrowing of charity purposes.
The Court also denied the without prejudice the USA’s motion with respect to the applicability of the
damages cap under the NJCIA, pending additional discovery
In a follow up decision following discovery and a renewed motion for summary judgment by the USA, the
Court found that the USA was entitled to a limitation on damages because CAMCare was organized
exclusively for hospital purposes. In so holding, the Court only addressed the issue of whether CAMCare
was a true “nonprofit” entity within the meaning of the NJCIA, as plaintiff’s response brief apparently
focused its argument on this single issue. The Court was unwilling to look beyond the 501(c)(3) status of
CAMCare in deciding whether it was a nonprofit entity. The Court’s decision did not address the
substantive analysis of whether CAMCare fell within the definition of “hospital purposes” as set forth in
Kuchera.
Dupont v. United States, 2016 WL 3457150 (2016).
Simandle
After decedent passed away, her husband filed a wrongful death suit against the United States for the
allegedly negligent actions of CAMcare Health Corporation. Defendant United States filed a Motion to
Dismiss for lack of subject matter jurisdiction since CAMcare on the basis that CAMCare was entitled to
absolute immunity, therefore removing the Court’s jurisdiction. Alternatively, the USA filed a motion for
partial summary judgment on the basis that it was entitled to the $250,000 damages cap available to
nonprofit entities organized exclusively for hospital purposes.
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The Court adopted Judge Kugler’s decision in Young on both issues, and also expanded its analysis on the
issue of whether CAMCare fell within the definition of a “modern hospital” under Kuchera. In finding that
CAMCare was a nonprofit entitled organized exclusively for charitable purposes, the Court focused on the
factors set forth in Judge Kugler’s initial decision in Young, as well as the following:
1. Nothing in CAMCare’s Bylaws mentioned any charitable services
2. CAMCare’s funding was derived from a combination of patient revenue, federal and state grants, and
private grants
3. CAMCare provided a variety of services, including 24 hour emergency medical coverage, primary care,
preventative care, and related and supported enabling services
4. CAMCare offered a variety of community health education events, plus social work and counseling
services
5. 64% of CAMCare’s patients are on Medicaid
6. CAMCare charged a sliding fee to patients unable to pay
7. CAMCare provided services to any patient regardless of their ability to pay, which is the very definition
of charity care
8. The Complaint did not allege CAMCare was acting in any charitable capacity at the time plaintiff was
treated, nor did plaintiff receive treatment as some part of charitable program operated by a hospital, like
in Kuchera
9. None of the defendant physicians who rendered care to plaintiff were volunteers
Judge Simandle found that all of the foregoing factors, taking together, pointed strongly in favor of
CAMCare being a hospital and not a charity. However, based on a Rule 56(d) affidavit filed by plaintiffs,
Judge Simandle denied the USA’s motion for partial summary judgment without prejudice, to be renewed
following a period of discovery.
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WEISS & PAARZ, P.C. 2600 New Rd., Suite A Northfield, NJ 08225 (609) 641-8400 ATTORNEYS FOR PLAINTIFFS
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
: DEBORAH ANN KAYE, : : CIVIL ACTION NO: : 1:23-cv-456789-ABC-DEF Plaintiffs, : : v. : SAMPLE SUPPLEMENTAL : NJCIA INTERROGATORIES UNITED STATES OF AMERICA; : Propounded by Plaintiff JOHN DOE MEDICAL DIRECTORS A-Z : Upon Defendant (multiple fictitious persons); JOHN DOE EMPLOYERS : United States of America A-Z (multiple fictitious entities); JOHN DOE : OBSTETRICAL CARE PROVIDERS A-Z (multiple : fictitious persons and/or entities) : : Defendants : : : TO: Edward Concannon, Assistant United States Attorney Attorney for Defendant United States of America
PLEASE TAKE NOTICE that pursuant to Rule 33 of the Federal Rules of Civil Procedure, plaintiffs hereby demand that defendant USA provide responses separately and in writing, under oath, to the following interrogatories. These interrogatories shall be deemed continuing and if defendant or his attorneys shall discover additional information responsive to these interrogatories after the responses thereto are first made, supplemental or amending answers must be promptly made.
DEFINITIONS A. “You and/or Your” means defendant United States of America (USA) its agents, servants,
employees, attorneys and all other persons acting or purporting to act on its behalf, including FQHC.
B. “Representative” means any person acting or purporting to act on behalf of defendant USA.
C. “Individual” or “Person” means any natural person, sole proprietorship, corporation, company,
association, joint venture, firm, partnership or other business or legal entity in whatever form.
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D. “Oral statement or communication” means any oral expression however communicated or
recorded.
E. “Document” means any papers, writing, record, recording, tape recordings or other tapes of any
kind, in defendant’s possession, custody or control, or of which defendants have knowledge, wherever located,
however produced or reproduced or whether a draft, original or copy. By way of illustration and not limitation,
the term “documents” shall include memoranda of telephone conversations, summaries, diaries or other records
of personal conversations or interviews, and minutes, summaries, or other record of ay meetings, discussions
or conferences, as well as other notes, reports, records, data, memoranda, correspondence, notebooks, scrap
books, diaries, minutes summaries, financial statements, ledgers, magnetic tape or other sound recordings,
telegrams, letters, photographs, drawings, plans studies, manuals, instructions, bids, specifications, graphs,
sketches, blueprints, charts, curves, motion picture films, microfilm, computer records, photograph negatives,
photocopies, photstats, descriptions, purchase orders, agreements, contracts, invoices bills of lading, published
or unpublished speeches, manuscripts or articles, transcripts, affidavits, depositions, printed matter,
publications, and any other retrievable intelligence, however recorded, memorialized or preserved. Any original
or copy containing or having attached any alterations, notes, comments or other material, not included in each
other original or copy shall be deemed a separate document within the foregoing definition.
F. “Identify” means when used in reference to:
(a) A natural person: his or her full name, present or last known address, telephone number, present or
last known business address, present position, business affiliation and job description; and if same is
not known, his or her last known position, business affiliation and job description; and his or her position,
business affiliation and job description at the time in question with respect to the Interrogatory involved.
(b) A company, corporation, association or joint venture, sole proprietorship, firm, partnership, or any
other business or legal entity not a natural person; its full name now and at the time in question;
description of the type of entity now and at the time in question, date and place of formation, current
legal status, nature of business activities in which it is engaged or was engaged at the time in question.
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(c) A document: its character (e.g., letter, memoranda, report, etc.); its title, date, author, address; all
distributes; the number of pages; and its subject matter; its present location; the identification of its
custodian or, if any such document was, but is no longer in existence or in possession of or subject to
control of defendant, the disposition made of it and the circumstances and date of such disposition.
(d) an oral statement or communication:
(1) The date and place where spoken
(2) The place where received;
(3) The substance;
(4) The means or medium employed for transmission
(5) The identification of each person to whom such statement or communication was made,
each person who was present when such statement or communication was made, and each
person who was present when such statement or communication was received.
INSTRUCTIONS
A. Pursuant to Local Civil Rule 33.1 each response to these Interrogatories should be inserted
immediately after the specific Interrogatory to which it applies
B. Pursuant to Local Civil Rule 33.1, if the defendant does not have personal knowledge of
information contained in one or more of the responses to these Interrogatories, for each answer not verified by
personal knowledge defendant should identify the person (s) from whom the information was obtained or, if the
source of the information was documentary, defendant should fully identify the document and set forth the
location thereof.
C. To the extent an identification of a document is sought herein and the document was, but is no
longer in defendant’s possession, subject to defendant’s control, or in existence, state whether it (i) is missing
or lost, (ii) has been destroyed, (iii) has been transferred, voluntarily or involuntarily to others, or (iv) has been
otherwise disposed of , and in each instance explain the circumstances surrounding any authorization for its
disposition; state the date of approximate date of disposition; the contents of the document; and the person who
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authorized its transfer, destruction or other disposition. Documents prepared prior or subsequent to, but which
relate or refer to, the time period covered by these Interrogatories are to be Identified.
D. For all documents or oral statements or communications responsive to these Interrogatories that
defendant does not intend to disclose because of an assertion of privilege:
(1) as to each such document: Identify the document’s subject matter, date, author(s), addressee(s)
and all other recipients, the nature of the privilege asserted (e.g. attorney client privilege, attorney work
product) and the basis for the privilege asserted
(2) as to each such oral statement or communication; identify the persons participating in the
communications, any other person(s) present when the communication was made, the date and place
of the communication, the subject matter of the communication, any document(s) memorializing the
communication, the nature of the privilege asserted (e.g., attorney-client privilege, attorney work
product), and the basis for the privilege asserted.
E. The “relevant time period” shall mean the time period ranging from 2013 through 2014 (inclusive
of 20013 and 2014).
SUPPLEMENTAL INTERROGATORIES
1. Identify the specific facts and documents that you intend to rely on in support of any defense, including your Charitable Immunity defense (total or limited), and to which defense each document pertains.
2. Do you contend that FQHC was organized exclusively for charitable purposes during the relevant time period? If yes, identify all facts the USA intends to rely on to support this contention.
3. Do you contend that FQHC operated at any time exclusively for charitable purposes during the relevant time period? If yes, identify all facts the USA intends to rely on to support this contention.
4. During the relevant time period, identify any and all purely “free” services provided by FQHC (with “free” meaning completely free of charge) to members of the public and all locations where each free service was provided.
5. For each year during the relevant time period, indicate the total amount of accounts receivable written off as bad debt expense as a result of patients’ failure to pay FQHC for billed medical services and identify all documents pertaining to the same.
6. Did FQHC have a written billing policy, guideline, handbook or similar document that was used by FQHC and its staff in attempting to collect payment from patients for services rendered by FQHC? If yes, please identify all documents pertaining to any such billing policy, guidelines, handbook or similar document.
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7. Do you contend that FQHC was organized exclusively for hospital purposes during the relevant time period? If yes, identify all facts the USA intends to rely on to support this contention.
8. Do you contend that FQHC operated at any time exclusively for hospital purposes relevant time period? If yes, identify all facts and documents the USA intends to rely on to support this contention.
9. Did FQHC ever provide 24-hour continuous medical care to patients who required admission to FQHC, similar to patients who require admission in a hospital setting, during the relevant time period? If yes, identify the locations where said 24-hour continuous services were provided and all supporting documents.
10. Did FQHC ever provide any non-medical services to patients during the relevant time period, including but not limited to educational classes, therapy, counseling, nutrition, or psychosocial services, during the relevant time period? If yes, identify all such services provided at each of FQHC’s facilities and all supporting documents.
11. Did FQHC ever provide medical education or instruction to medical students, physicians, nurses or other healthcare professionals during the relevant time period, including residency programs? If yes, indicated specifically what type of education or instruction was provided and identify all supporting documents.
12. For the relevant time period, did FQHC ever receive or solicit funds, in-kind contributions, or other donations from any non-governmental individual or entity? If yes, identify and attach all supporting documents.
13. For the relevant time period, indicate whether FQHC submitted any applications for non-governmental grant funding, and if so, identify the total amount of non-governmental grant funding received during the relevant time period and identify all supporting documents.
14. For the relevant time period, indicate whether FQHC submitted any applications for federal, state, county or municipal government grant funding, and if so, identify the total amount of government grant funding received during the relevant time period and identify all supporting documents.
15. Identify who owned the premises/properties located at [address of FQHC] for the relevant time period, as indicated by deed.
16. Identify all individuals with knowledge of information relevant to any defense asserted by the USA that is based on the New Jersey Charitable Immunity Act.
* Fed. R. Civ. P. 33(a)(1) limits supplemental interrogatories to 25, including discrete parts*
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CERTIFICATION I hereby certify that the foregoing answers to interrogatories are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. I hereby certify that the copies of the reports annexed hereto provided by either treating physicians or proposed expert witnesses are exact copies of the entire report or reports provided by them; that the existence of other reports of said doctors or experts, either written or oral, are unknown to me, and if such become later known or available, I shall serve them promptly on the propounding party. Dated:______________________
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WEISS & PAARZ, P.C. 2600 New Rd., Suite A Northfield, NJ 08225 (609) 641-8400 ATTORNEYS FOR PLAINTIFFS
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
: DEBORAH ANN KAYE, : : CIVIL ACTION NO: : 1:23-cv-456789-ABC-DEF Plaintiffs, : : v. : : NOTICE TO PRODUCE #2 UNITED STATES OF AMERICA; : Propounded by Plaintiff JOHN DOE MEDICAL DIRECTORS A-Z : Upon Defendant (multiple fictitious persons); JOHN DOE EMPLOYERS : United States of America A-Z (multiple fictitious entities); JOHN DOE : OBSTETRICAL CARE PROVIDERS A-Z (multiple : fictitious persons and/or entities) : : Defendants : : : TO: Edward Concannon, Assistant United States Attorney Attorney for Defendant United States of America PLEASE TAKE NOTICE that pursuant to Rule 34 of the Federal Rules of Civil Procedure, plaintiffs hereby demand that defendant USA produce the following documents within 30 days from the date of service hereof and as a continuing request to the office of Weiss & Paarz, 2600 New Road, Suite A, Northfield, New Jersey 08225.
DEFINITIONS
A. “You and or Your” means defendant United States of America (USA) its agents, servants,
employees, attorneys and all other persons acting or purporting to act on its behalf, including FQHC.
B. “Representative” means any person acting or purporting to act on behalf of defendant USA
C. “Individual” or “Person” means any natural person, sole proprietorship, corporation, company,
association, joint venture, firm, partnership or other business or legal entity in whatever form.
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D. “Oral statement or communication” means any oral expression however communicated or
recorded.
E. “Document” means any papers, writing, record, recording, tape recordings or other tapes of any
kind, in defendant’s possession, custody or control, or of which defendants have knowledge, wherever located,
however produced or reproduced or whether a draft, original or copy. By way of illustration and not limitation,
the term “documents” shall include memoranda of telephone conversations, summaries, diaries or other records
of personal conversations or interviews, and minutes, summaries, or other record of ay meeting, discussions
or conferences, as well as other notes, reports, records, data, memoranda, correspondence, notebooks, scrap
books, diaries, minutes summaries, financial statement, ledgers, magnetic tape or other sound recordings,
telegrams, letters, photographs, drawings, plans studies, manuals, instructions, bids, specifications, graphs,
sketches, blueprints, charts, curves, motion picture films, microfilm, computer records, photograph negatives,
photocopies, photo-stats, descriptions, purchase orders, agreements, contracts, invoices bills of lading,
published or unpublished speeches, manuscripts or articles, transcripts, affidavits, depositions, printed matter,
publications, and any other retrievable intelligence, however recorded, memorialized or preserved. Any original
or copy containing or having attached any alterations, notes, comments or other material, not included in each
other original or copy shall be deemed a separate document within the foregoing definition.
F. “Identify” means when used in reference to:
(a) A natural person: his or her full name, present or last known address, telephone number, present or
last known business address, present position, business affiliation and job description; and if same is
not known, his or her last known position, business affiliation and job description; and his or her position,
business affiliation and job description at the time in question with respect to the Interrogatory involved
(b) A company, corporation, association or joint venture, sole proprietorship, firm, partnership, or any
other business or legal entity not a natural person; its full name now and at the time in question;
description of the type of entity now and at the time in question, date and place of formation, current
legal status, nature of business activities in which it is engaged or was engaged at the time in question.
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(c) A document: its character (e.g., letter, memoranda, report, etc.); its title, date, author, address; all
distributes; the number of pages; and its subject matter; its present location; the identification of its
custodian or, if any such document was, but is no longer in existence or in possession of or subject to
control of defendant, the disposition made of it and the circumstances and date of such disposition.
(d) An oral statement or communication:
(1) The date and place where spoken
(2) The place where received;
(3) The substance;
(4) The means or medium employed for transmission
(5) The identification of each person to whom such statement or communication was made,
each person who was present when such statement or communication was made, and each
person who was present when such statement or communication was received
G. The “relevant time period” shall mean the time period ranging from 2013 through 2014 (inclusive
of 2013 and 2014).
DOCUMENT REQUESTS
1. Copies of any and all documents the USA intends to rely on to support any defense asserted under the New Jersey Charitable Immunity Act, including but not limited to copies of the following:
a. FQHC’s Articles of Incorporation, Bylaws or other governing documents, including all
amendments thereto, which were in effect during the relevant time period;
b. Any and all the documents the USA intends to rely on to support any claim by that FQHC was
organized exclusively for charitable purposes during the relevant time period;
c. Any and all documents the USA intends to rely on to support any claim that FQHC was operated
at any time exclusively for charitable purposes during the relevant time period;
d. Any and all documents the USA intends to rely on to support any claim that FQHC provided purely
“free” services to any member of the public (with “free” meaning completely free of charge);
e. Any and all documents the USA intends to rely on to demonstrate any amount of money written
off by FQHC as bad debt expense, or otherwise deemed uncollectible, as a result of patients’ failure to pay for billed medical services and the steps or process followed in calculating bad debt expense each year;
f. Any and all documents pertaining in any way to any billing practice, policy, guideline, handbook
or similar document which was in effect during the relevant time period and which sets forth
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FQHC’s expectation of payment for services rendered to patients; any discount policy used; and any attempts to collect payment from patients for services rendered;
g. All Form 990s filed by FQHC for each year of the relevant time period;
h. All NJ-CRI 300R forms filed by FQHC for each year of the relevant time period;
i. All NJ-CRI 200 forms filed by FQHC for each year of the relevant time period;
j. All audited financial statements of FQHC for the relevant time period, which sets forth FQHC’s
total revenue, all sources of revenue; all operating expenses; and any retained earnings or unrestricted net assets for each year of the relevant time period;
k. Any and all documents that identify all members of FQHC’s Board of Directors and any
compensation and/or fringe benefits each received each year of the relevant time periods;
l. All meeting minutes of FQHC’s Board of Directors and any committees or subcommittees thereto for each year of the relevant time period;
m. Any and all documents that identify all of FQHC’s Executive Officers and any compensation
and/or fringe benefits they received for each year of the relevant time period;
n. Any and all documents that identify FQHC’s top 10 highest paid employees and the amount of
compensation and fringe benefits they received for each year of the relevant time period;
o. Any and all grant applications submitted to any private (“private” defined as non-governmental)
individuals, organizations or entities during the relevant time period;
p. Any and all documents pertaining to any grant awards received by FQHC from any private (“private”
defined as non-governmental) individuals, organizations or entities during the relevant time period, including but not limited to any documents pertaining to the amount of each award, the identity of the donor, and any restrictions on the use of grant funds;
q. Any and all grant applications submitted to any governmental (federal, state, county, or municipal
government) individual, entity, organization or agency during the relevant time period, including but not limited to all HRSA grant applications;
r. Any and all documents pertaining to any grant awards received by FQHC from any governmental
(federal, state, county, or municipal government) individual, entity, organization or agency during the relevant time period, including but not limited to any Notice of Grant Award and any documents pertaining to the amount of each award, the identity of the donor, and any restrictions on the use of grant funds;
s. Any and all documents pertaining to any donation and/or in-kind contribution solicited or otherwise
applied for by FQHC during the relevant time period;
t. Any and all documents pertaining to any donation and/or in-kind contribution received by FQHC during the relevant time period, including but not limited to any documents pertaining to any items donated, the monetary value of each donation/contribution, and the identity of the donor;
u. Any and all documents pertaining to fundraising activities of FQHC during the relevant time period, including but not limited to any documents setting forth the date of each fundraising activity, a
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description of each fundraising activity, the cost of each fundraising activity to FQHC, the total amount of funds raised from each activity, and the identity of all donors;
v. All HRSA site visit reports that cover any portion of the relevant time period;
w. All Uniform Data System Reports filed by FQHC with HRSA which cover any portion of the
relevant time period;
x. Any and all documents supporting any claim by the USA that FQHC was organized exclusively
for hospital purposes during the relevant time period;
y. Any and all documents supporting any claim by the USA that FQHC was operated at any time
exclusively for hospital purposes during the relevant time period;
z. Any and all documents pertaining to the medical services provided by FQHC at each of its facilities
during the relevant time period and the specific FQHC facility or facilities where these services were provided;
aa. Any and all documents pertaining to the non-medical services provided by FQHC during the relevant
time period and the specific FQHC facility or facilities where these services were provided;
bb. Any and all documents pertaining to the hours of operation for each of FQHC’s facilities during the
relevant time period;
cc. Any and all documents pertaining to any medical education or instruction offered by FQHC to medical
students, physicians, nurses or other healthcare professionals, including but not limited to any residency programs, during the relevant time period;
dd. Any and all documents pertaining to the individual and/or entity that owns any of the buildings or
other real estate that FQHC uses to operate its facilities;
ee. All affiliation, referral, or partnership contracts or other similar agreements in effect between FQHC
and any hospital or physician’s office during the relevant time period.
WEISS & PAARZ Attorneys for Plaintiffs BY: ______________________________ FRANK GALVIN, ESQ. Dated:
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IN LIMINE MOTIONS IN MEDICAL MALPRACTICE TRIALS
Bruce H. Nagel, Esq.
1. Opinions of non-testifying doctors contained in medical
records are not admissible. Nowacki v. Community Med. Ctr., 279
N.J. Super. 276 (App. Div. 1995).
2. Failure to follow discharge instructions is not relevant
to liability or proximate cause. Hofstrom v. Share, 295 N.J. Super.
186 (App. Div. 1996)
3. Material changes in testimony must be discussed prior to
trial. McKenny v. Jersey City Medical Center, 167 N.J. 359 (2001).
4. Prior litigation of the plaintiff not relevant. Krug v.
Wanner, 28 N.J. 174 (1958).
5. In wrongful birth action, the joy/benefit that the
parents experience is not a proper line of cross-examination. Also,
improper to ask parents if they wished their child (by name or
otherwise) was not born. Lodato ex rel. Lodato v. Kappy, 353 N.J.
Super. 439 (App. Div. 2002).
53
6. In failure to perform prenatal testing, improper to
question the parents regarding their failure to request the
testing. Geler v. Akawie, 358 N.J. Super. 437 (App. Div. 2003)
7. Improper to invoke the diety in opening or closing.
Liguori v. Elman, A-1819-04T5 (2006)
8. Improper to suggest that it is unseemly for parents to
bring an action for damages after the death of a child. Rabinowitz
v. Reyman, No. A-2633-12T3, 2015 WL 2070029, at *6 (N.J. Super.
Ct. App. Div. May 6, 2015).
9. Improper to ask the jury to send a message to the doctor
or the medical profession. Jackowitz v. Lang, 408 N.J. Super. 495
(App. Div. 2009).
10. Improper to suggest to jury that the doctor settled
because he was at fault. Counsel may ask for allocation of fault
based upon culpability, but not based upon the fact that the co-
defendant settled. Model Jury Charge, sec. 1.17.
11. In breach of standards case, improper to focus on
informed consent form and the risks contained therein.
12. In opening, improper for defense counsel to express
regret or sorrow for the tragic medical result.
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Pre-existing condition/Increased risk/Proximate cause
In this case, plaintiff Stephanie Spada claims that defendant, Dr. Vasireddy, was
negligent when she did not admit John Spada to the hospital on July 5, but instead
prescribed Prednisone. Plaintiff contends that if Mr. Spada had been admitted, his
chance of survival would have been increased. Dr. Vasireddy contends, on the other
hand, that her treatment conformed to the standard of care. She contends additionally
that Mr. Spada was not suffering from ischemia of the intestines when she spoke to him
on July 5, and thus any negligence by her did not increase the risk of his death.
If you determine that Dr. Vasireddy was negligent, then you must also decide
what is the chance that Mr. Spada would not have died of ischemia of the intestines if
Dr. Vasireddy had not been negligent. In other words, if you decide that Dr. Vasireddy
was negligent, then you must decide to what extent was Mr. Spada's death caused by
the condition that plaintiff claimed to have been preexisting (the ischemia of the
intestines) and to what extent were the injuries caused by the doctor's negligence.
According to plaintiff, when Mr. Spada called Dr. Vasireddy on the morning of
July 5, he was suffering from ischemia of the intestines, which by itself had a risk of
causing his death. However, plaintiff claims that the doctor's negligence increased the
risk that Mr. Spada would die from that pre-existing condition, and thus contributed to
his ultimate injury. To establish that the doctor's negligence was a cause of Mr. Spada's
death, plaintiff must first prove that the doctor's negligence increased the risk of harm
posed by a pre-existing condition, ischemia of the intestines.
Second, plaintiff must prove that the increased risk caused by the doctor's
negligence was a substantial factor in producing Mr. Spada's ultimate injury, his
death.
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.
It need not be the only cause of his death, or even a primary cause. However, in order
for you to find liability on the part of the doctor, you must find that her negligent
conduct was not a remote or an inconsequential contributing factor in producing Mr.
Spada's death. It must play a role that is both relevant and significant in increasing the
risk. What you must focus on in this part of your analysis is not the amount by which
the risk was increased, but on the causal connection between the doctor's conduct and
the increase in the risk - was that connection relevant and significant or was it remote
and inconsequential. If, under all of the circumstances, you find that Mr. Spada's risk
of death, would have been less if Dr. Vasireddy had not been negligent in failing to
insist that Mr. Spada be hospitalized on July 5, then the doctor is liable for the
increased risk caused by her conduct. On the other hand, if you find that Mr. Spada
would have died regardless of the doctor's allegedly negligent treatment on July 5,
either because. (l) he did not develop ischemia of the intestines until Monday, July 7
or because (2) he was suffering from that condition on July 5 but he would have died
regardless of the delay in treatment, then Dr. Vasireddy is not liable to plaintiff.
If you find that the plaintiff has proven that Dr. Vasireddy was negligent and
that her negligence was a substantial factor in increasing the risk of death to Mr. Spada
from a pre-existing condition, i.e., ischemia of the intestines existing on July 5, then
plaintiff is not required to quantify or put a percentage on the extent to which the
doctor's negligence added to Mr. Spada's risk of death. In this case, plaintiff concedes
that there some risk existed that Mr. Spada would die from his ischemia of the
intestines, regardless ofthe treatment rendered. However, it remains Dr. Vasireddy's
burden to reasonably prove Mr. Spada's likelihood of death, regardless of her
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negligence. If she is able to do that, then she is responsible only for the amount of
ultimate harm caused by her negligence.
For example, if you hypothetically find that Dr. Vasireddy has proven that
Mr. Spada had a 90% chance of dying, even if his condition had been diagnosed
and treatment instituted on July 5, and that her negligent conduct only increased the
risk of death by 10%, then she would only be liable for the 10% in damages that
could be attributed to her negligent conduct. I use that figure only as an example.
You could, for instance, determine that Dr. Vasireddy's negligence increased the
risk by 3% or 20% whatever figure you find was supported by the evidence.
If you determine that plaintiff is entitled to damages, you should award her
the full amount of those damages. Your award should not be reduced by your
allocation of harm. I will perform any adjustment to damages required by your
verdict.
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5.50E PRE-EXISTING CONDITION — INCREASED RISK/LOSS
OF CHANCE — PROXIMATE CAUSE (10/2014)
NOTE TO JUDGE
In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974); Evers v. Dollinger, 95 N.J. 399 (1984); Scafidi v. Seiler, 119 N.J. 93 (1990); Gardner v. Pawliw, 150 N.J. 359 (1997), and most recently Reynolds v. Gonzales, 172 N.J. 266 (2002), the New Jersey Supreme Court has established a modified standard of proximate cause for use in certain medical negligence cases. The following charge is to be used only in cases where it is alleged that the plaintiff has a pre-existing condition which, by itself, had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. Under the sequence of this charge and accompanying interrogatory, the plaintiff has to prove (1) a deviation from accepted standards of medical practice, (2) that the deviation increased the risk of harm posed by the pre-existing condition, and (3) that the increased risk was a substantial factor in causing the plaintiff’s ultimate injury. The defendant is responsible for all of plaintiff’s injuries unless the defendant can prove (4) what portion of plaintiff’s injuries were the result of the pre-existing condition.
Furthermore, in Reynolds, supra, the Supreme Court held that failure to specifically explain the charge in the context of the facts of the case was reversible error. Therefore, to assist trial judges and practitioners this Model Civil Charge uses typical medical negligence theories as illustrative examples.
In cases involving an allegation that the failure to perform a diagnostic test increased the risk of harm from a pre-existing condition, the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below.
Additionally, in Komlodi v. Picciano, 217 N.J. 387 (2014), the Supreme Court addressed the misapplication of a Scafidi charge where the defenses are based on avoidable consequences and/or superseding/intervening causes and not a pre-existing condition.
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In this case, the Plaintiff had a pre-existing condition which, by itself, had a
risk of causing the plaintiff the harm he/she ultimately experienced in this case.
However, the plaintiff contends that he/she lost the chance of a better outcome
because of the Defendant’s deviation from accepted standards of medical practice.
[Insert here a detailed factual description of the case, such as, (1) the plaintiff
contends that she told the defendant that she felt a lump in her breast in January of
2000, that the defendant was negligent in not ordering a mammogram or other test
for cancer until January 2001, and that as a result of the delay the cancer spread to
her lungs, liver and brain, and is now likely to cause her death; or (2) the plaintiff
contends that her husband went to the defendant hospital emergency room after
suffering a heart attack. The plaintiff further asserts that the defendant negligently
misdiagnosed her husband's heart attack, and sent her husband home, where he
died.]
If you determine that the defendant deviated from accepted standards of
medical practice you must then consider whether the Plaintiff has proven that the
deviation increased the risk of harm posed by the Plaintiff’s pre-existing condition.1
You must then consider whether the Plaintiff has proven that the increased risk of
harm was a substantial factor in producing the ultimate harm or injury. If the
deviation was only remotely or insignificantly related to the ultimate harm or injury,
1 See Reynolds v. Gonzales, supra at 282.
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Page 3 of 9
then the deviation does not constitute a substantial factor. However, the defendant’s
deviation need not be the only cause, or even a primary cause, of an injury for the
deviation to be a substantial factor in producing the ultimate harm or injury.2
If under all of the circumstances here [here insert specific circumstances such
as the delay in the diagnosis of the breast cancer or the heart attack] you find that
the plaintiff may have suffered lesser injuries if the defendant did not deviate from
accepted standards of medical practice, then the defendant is liable for the plaintiff’s
increased injuries. On the other hand, if you find that the plaintiff would have
suffered the same injuries even if the defendant did not deviate from accepted
standards of medical practice, then the defendant is not liable to the plaintiff.3
[Add where the allegation is that the failure to perform a diagnostic test
increased the risk of harm:]
2 Reynolds, supra at 288. The determination of what constitutes a “substantial factor” was analyzed in Velazquez v. Jiminez, 336 N.J. Super. 10 (App. Div. 2000), aff'd, 172 N.J. 240 (2002), where the jury found that 5% of the ultimate injury resulted from a pre-existing condition, that a settling defendant contributed to 92% of the ultimate injury and that the non-settling defendant was 3% responsible. The jury awarded damages totaling $2,500,000.00. The trial judge then ruled, sua sponte, that the non-settling defendant was not negligent as a matter of law. In reversing, the Appellate Division held that the jury’s finding that a defendant was 3% negligent satisfies the substantial factor test announced in Scafidi, supra. The Velazquez court cited Dubak v. Burdette
Tomlin Memorial Hospital, 233 N.J. Super. 441, 452 (App. Div.), certif. denied, 117 N.J. 48 (1989) which held that a finding of 10% fault satisfied the substantial factor test. Velazquez v. Jiminez, supra at 31-32. The Court may further explain to the jury in the charge at this point, that any percentage increase in the risk of harm can be considered by the jury to be substantial. 3 In Gonzalez v. Silver, et al., 407 N.J. Super. 576, 588 (App. Div. 2009), the court noted: “…where a physician defendant’s negligence combines with a patient-plaintiff’s preexistent condition to cause harm, it is reversible error to instruct the jury on the “but for” proximate cause standard either alone or in conjunction with the substantial factor test.”
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If you determine that the defendant deviated from accepted standards of
medical practice in not having a diagnostic test performed, in this case [here indicate
the test(s)], but it is unknown whether performing the test would have helped to
diagnose or treat a pre-existent condition, the plaintiff does not have to prove that
the test would have resulted in avoiding the harm. In such cases the plaintiff must
merely demonstrate that the failure to give the test increased the risk of harm from
the pre-existent condition. A plaintiff may demonstrate an increased risk of harm
even if such tests are helpful in a small proportion of cases.4
4 See Gardner v. Pawliw, supra at 387. In Gardner v. Pawliw, supra, the Supreme Court applied the increased risk/substantial factor test to the failure to perform diagnostic testing. In that case, the plaintiff's high risk pregnancy was being managed by the defendant. The Gardner Court observed that when the malpractice consists of a failure to perform a diagnostic test, the “very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed.” Id. at 380. In such a case, as a matter of public policy, the plaintiffs were entitled to have a jury determine causation. The Court explained:
When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. Id. at 387.
The Court then explained the plaintiff’s burden of proof in such cases: “Plaintiffs’ burden was not to show as a matter of reasonable medical probability that the tests would have revealed the placenta and umbilical cord abnormalities. Plaintiffs’ burden was to show that [the defendant’s] failure to perform the NST and BPP tests increased the risk that the fetus would die in utero . . . [the plaintiff's expert] answered affirmatively when asked whether he could say to a reasonable
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[In all cases continue here:]
If you find that the plaintiff has proven that the defendant deviated from
accepted standards of medical practice and that the deviation increased the risk of
harm posed by the Plaintiff’s pre-existing condition and was a substantial factor in
producing the ultimate harm/injury, the plaintiff is not required to quantify or put a
percentage on the extent to which the defendant’s deviation added to all of the
plaintiff's final injuries. In cases where the defendant’s deviation accelerated or
worsened the plaintiff’s pre-existing condition, the defendant is responsible for all
of the plaintiff’s injuries unless the defendant is able to reasonably apportion the
damages.5 If the injuries can be so apportioned, then the defendant is only
responsible for the amount of ultimate harm caused by the deviation.
degree of medical probability that because [the defendant] failed to perform either an NST or a BPP test there had been an increased risk that a condition that could cause the fetus’s death would not be recognized. Accordingly, [the plaintiff's expert’s] testimony was sufficient for plaintiffs to satisfy their requisite threshold burden of proof that to a reasonable medical probability the failure to perform those two tests increased the risk of harm from the preexistent condition. Plaintiffs should have been permitted to submit for the jury’s determination the questions of whether, based on the parties’ expert testimony, the failure to give the NST or BPP tests had increased the risk that the fetus’s condition would not be detected, treated or corrected and whether that increased risk had been a substantial factor in causing her death.” Gardner v. Pawliw, supra at 388-389. See also, Greene v. Memorial Hospital, 299 N.J. Super. 372 (App. Div. 1997), remanded, 151 N.J. 67 (1997), rev’d. 304 N.J. Super. 416 (App. Div. 1997). 5 If there is no evidence submitted as to apportionment of damage, then the defendant is responsible for the full injury and all damages. See, Fosgate v. Corona, supra. See also, Lanzet
v. Greenberg, 126 N.J. 168 (1991), where the Supreme Court reiterated that the defendant has the burden of separating the damages attributable to the pre-existing condition from the damages attributable to the negligence. See also, Ginsberg v. St. Michael’s Hospital, 292 N.J. Super. 21 (App. Div. 1996), and Golinsky v. Hackensack Medical Center, 298 N.J. Super. 650 (App. Div. 1997). In such cases the judge should eliminate those paragraphs from the charge relating to apportionment as well as eliminate from the verdict sheet questions relating to apportionment.
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For example, if the defendant claims that: [(1) the plaintiff would still have
suffered the spread of her cancer even if the diagnosis had been made in January
2001; or (2) that the plaintiff's husband still would have died of a heart attack even
if treated earlier], and if the defendant can prove that an apportionment can be
reasonably made, separating those injuries the plaintiff would have suffered anyway,
even with timely treatment, from those injuries the plaintiff suffered due to the delay
in treatment, then the defendant is only liable for that portion/percentage of the
injuries the defendant proves is related to the delay in treatment of the plaintiff’s
original condition. On the other hand, if you find that the defendant has not met the
defendant’s burden of proving that plaintiff’s injuries can be reasonably apportioned,
then the defendant is responsible for all of the plaintiff’s harm or injury.
When you are determining the amount of damages to be awarded to the
plaintiff, you should award damages for all of the plaintiff’s injuries. Your award
should not be reduced by the percentages. The adjustment in damages, which may
be required, will be performed by the court.
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NOTE TO JUDGE
The trial court should give an ultimate outcome charge on the apportionment question in conjunction with a Scafidi charge. Fischer v. Canario, 143 N.J. 235, 251 (1996), citing Roman v.
Mitchell, 82 N.J. 336, 345 (1980). Noting that the purpose of an ultimate outcome charge is to inform the jury about the impact of its decision, the Fischer Court explained that juries should understand the impact of their findings. Therefore, the Fischer Court concluded that the trial court’s failure to give the ultimate outcome charge, as reflected in Model Civil Charge 7.31, was error.
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CHARGE 5.50E – INTERROGATORIES (04/2014)
JURY INTERROGATORIES
1) Has the Plaintiff proven by the preponderance of the evidence that Dr. _____ deviated from accepted standard of medical practice?
Yes ____ If your answer is “Yes” proceed to question 2.
No ____ If your answer is “No” return your verdict for the defendant.
2) Has the Plaintiff proven that Dr. _____’s deviation from accepted standard of medical practice increased the risk of harm posed by the plaintiff’s pre-existing condition?
Yes ____ If your answer is “Yes” proceed to question 3.
No ____ If your answer is “No” return your verdict for the defendant.
3) Was the increased risk a substantial factor in causing the Plaintiff’s ultimate injury?1
Yes ____ If your answer is “Yes” proceed to question 4.
No ____ If your answer is “No” return your verdict for the defendant.
4) Has the Defendant met his burden of proving that some portion of the ultimate injury was a result of the pre-existing condition?
Yes ____ If your answer is “Yes” proceed to question 5.
No ____ If your answer is “No” proceed to question 6.
5) State in percentages, what portion of the ultimate injury is a result from:
A. The pre-existing condition. ______ % B. Dr. _____’s deviation from the accepted standard of medical practice ______ %
Total 100 % The total must equal 100%.
1 See Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013).
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6) What amount of money would fairly and reasonably compensate the plaintiff for his/her injuries?2
Total Damages: $__________
7) What amount of money would fairly and reasonably compensate the plaintiff’s spouse [per quod claimant] for his/her loss of services? $__________
2 The court may include specific line items for specific categories of damages, such as past/future pain and suffering, medical bills, lost income damages, etc., as may be justified by the evidence.
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JOHN DOE as Executor of the Estate of JANE DOE (his Wife) Plaintiff, v. JANE OB/GYN, M.D.; JOHN RADIOLOGIST, M.D.; MICHAEL INTERNIST, M.D.; GENERIC MEDICAL CENTER; Defendants.
: : : : : : :
SUPERIOR COURT OF NEW JERSEY LAW DIVISION – BERGEN COUNTY DOCKET NO.: BER-L-
Civil Action
JURY VERDICT FORM
I. Defendant DR. OB/GYN
1. Was defendant DR. OB/GYN negligent in her treatment of JANE DOE?
Yes ____
No ____ Vote _____ If you answered “yes”, then proceed to question 2.
If you answered “no”, then leave questions 2 & 3 blank, having found in favor of the Defendant DR. OB/GYN, and proceed directly to question 4 concerning the Defendant DR. RADIOLOGIST.
2. Did the negligence of DR. OB/GYN increase the risk of death to JANE DOE from a
condition from which she was suffering on (INSERT DATE OF MISDIAGNOSIS)? Yes ____
No ____ Vote _____ If you answered “yes”, then proceed to question 3. If you answered “no”, then leave question 3 blank, having found in favor of the Defendant DR. OB/GYN, and proceed directly to question 4 concerning the Defendant DR. RADIOLOGIST.
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2
3. Was the increased risk a substantial factor in bringing about JANE DOE’s death? Yes ____
No ____ Vote _____
Proceed to question 4. II. Defendant DR. RADIOLOGIST
4. Was the defendant DR. RADIOLOGIST negligent in the treatment of JANE DOE?
Yes ____
No ____ Vote _____ If you answered “yes”, then proceed to question 5.
If you answered “no”, then leave questions 5 & 6 blank, having found in favor of the Defendant DR. RADIOLOGIST, and proceed directly to question #7 concerning the Defendant DR. INTERNIST.
5. Did the negligence of DR. RADIOLOGIST increase the risk of death to JANE DOE from
a condition from which she was suffering on (INSERT DATE OF MISDIAGNOSIS)? Yes ____
No ____ Vote _____
If you answered “yes”, then proceed to question 6.
If you answered “no”, then leave questions #6 & 7 blank, having found in favor of the Defendant DR. RADIOLOGIST, and proceed directly to question #8 concerning the Defendant DR. INTERNIST.
6. Was the increased risk caused by DR. RADIOLOGIST’s negligence a substantial factor in bringing about JANE DOE’s death? Yes ____
No ____ Vote _____
Proceed to question #7.
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3
III. Defendant DR. INTERNIST
7. Was the defendant DR. INTERNIST negligent in the treatment of JANE DOE?
Yes ____
No ____ Vote _____ If you answered “yes”, then proceed to question 8.
If you answered “no”, then proceed to question 10.
8. Did the negligence of DR. INTERNIST increase the risk of death to JANE DOE from a
condition from which she was suffering on (INSERT DATE OF MISDIAGNOSIS)? Yes ____
No ____ Vote _____
If you answered “yes”, then proceed to question #9.
If you answered “no”, then proceed to question #10.
9. Was the increased risk caused by DR. INTERNIST’s negligence a substantial factor in bringing about JANE DOE’s death? Yes ____
No ____ Vote _____
Proceed to question #10.
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4
IV. Percentage of fault. 10. Determine the respective cause(s) of JANE DOE’s death. If you answered “no” to any of questions 1, 2 or 3, put an “X” in the space next to “DR.
OB/GYN’S negligence.” If you answered “no” to any of questions 4, 5 or 6, put an “X” in the space next to “DR.
RADIOLOGIST’S negligence” If you answered “no” to any of questions, 7, 8 or 9, put an “X” in the space next to “DR.
INTERNIST’S negligence.” If you placed a “X” in all of the spaces next to DR. OB/GYN, DR. RADIOLOGIST and DR.
INTERNIST, then cease deliberating, and sign and return this jury verdict form, giving your verdict for all of the defendants, and finding no cause of action for the Plaintiff JOHN DOE.
If you left the space next to any of DR. OB/GYN, DR. RADIOLOGIST or DR. INTERNIST
blank, then state in percentages in the blank spaces, what was the chance that JANE DOE’S death was the result of:
DR. OB/GYN’s negligence % DR. RADIOLOGIST’s negligence % DR. INTERNIST’s negligence % JANE DOE’s pre-existing condition % TOTAL 100%
The total must equal %100
Proceed to question #11.
74
5
V. Damages 11. What amount of damages would fairly and reasonably compensate plaintiff JOHN DOE
and his minor daughter JESSICA DOE for the monetary value of the damages sustained b them as the result of the death of JANE DOE?
[ENTER TOTAL AMOUNT-MAKE NO ADJUSTMENTS
TO REFLECT PERCENTAGES IN ANSWER NO. 10, ABOVE]
$___________________________________ Vote _______
12. What amount of damages would provide fair and reasonable compensation for the
conscious pain and suffering, disability, impairment and loss of enjoyment of life JANE DOE experienced as a result of the Defendant(s) negligence on (INSERT DATE OF MISDIAGNOSIS)?
[ENTER TOTAL AMOUNT-MAKE NO ADJUSTMENTS TO REFLECT PERCENTAGES IN ANSWER NO. 10, ABOVE] $___________________________________ Vote ________
Dated: ___________________ Signed: _____________________________ Jury Foreperson
75
---- Reprinted with permission of LexisNexis.
Flood v. Aluri-Vallabhaneni
Superior Court of New Jersey, Appellate Division January 29, 2013, Argued; June 13, 2013, Decided
DOCKET NO. A-4248-11T2
Reporter 431 N.J. Super. 365; 70 A.3d 665; 2013 N.J. Super. LEXIS 89; 2013 WL 2631429
JAMES FLOOD, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF KEISHA
FLOOD, PLAINTIFF-APPELLANT/CROSS-
RESPONDENT, v. BHANU ALURI-VALLABHANENI,
M.D. AND IMAGING SUBSPECIALISTS OF NORTH
JERSEY, LLC, DEFENDANTS-
RESPONDENTS/CROSS-APPELLANTS.
Subsequent History: [***1] Approved for Publication
June 13, 2013. Certification denied by Flood v. Bhanu, 216 N.J. 14, 76
A.3d 533, 2013 N.J. LEXIS 1103 (N.J., Oct. 22, 2013)
Prior History: On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket No. L-
4424-08.
Core Terms interrogatories, substantial factor, deviation, increased
risk, pre-existing, damages, risk of harm, jury charge,
proximate cause, burden of proof, ultimate injury,
apportionment, producing, questions, appended, jury's,
causation, pre existing condition, answered, instructions,
proven, cases, accepted standard, suffering, medical
standard, apportion, proximate, settling, issues, sheet
Case Summary
Procedural Posture Plaintiff administrator, individually and on behalf of a
decedent's estate, appealed the judgment of the Superior
Court of New Jersey, Law Division, Passaic County, in
favor of defendant radiologist, following a jury trial.
Plaintiff brought a medical malpractice action against
defendant and others, following the death of the
decedent, his daughter at a hospital. Plaintiff had settled
with all other parties except defendant.
Overview
Over plaintiff's objection, the trial judge adapted form
interrogatories supplied by defendant and rejected
plaintiff's request to use the form interrogatories
appended to Model Jury Charge, Civil. The jury
concluded defendant deviated from the standard of care,
and that the deviation increased the risk of harm from
decedent's pre-existing medical condition; however, the
jury unanimously found the increased risk was not a
substantial factor in causing the death of plaintiff's
decedent. On appeal, plaintiff asserted that it was
reversible error not to use the current interrogatories. The
court held that the interrogatories did not mislead the jury
or misstate the law. The court further concluded that the
current form interrogatories were inconsistent with
established precedent and have the potential, in a
Scafidi-type medical malpractice suit, of relieving a
plaintiff of proving an essential element of the lessened
proximate cause standard, namely, that a defendant's
deviation not only increased the risk of harm, but was also
a substantial factor in bringing about the ultimate harm.
Outcome The court affirmed the judgment. The court requested
that the Model Jury Charge Committee re-examine the
issue, and, in the interim, the court disapproved of the
continued use of the model interrogatories as currently
written.
LexisNexis® Headnotes
Civil Procedure > ... > Jury Trials > Jury
Instructions > Requests for Instructions
HN1 R. 1:8-7(a) provides that the court shall, on the
record, rule on the charging requests prior to closing
arguments to the jury. A verbatim record shall be made
of any charge conference the court holds.
Civil Procedure > ... > Jury Trials > Jury
Instructions > General Overview Torts > Malpractice & Professional Liability > Healthcare
Providers
77
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Ron Botelho
Torts > ... > Defenses > Comparative Fault > Procedural
Matters
HN2 The New Jersey Supreme Court has explained: The
rationale underlying the use of a two-pronged jury
instruction in a medical malpractice action bears
elaboration. Because that modified standard of proximate
causation is limited to that class of cases in which a
defendant's negligence combines with a preexistent
condition to cause harm, as distinguished from cases in
which the deviation alone is the cause of harm, the jury is
first asked to verify that the deviation is within the class,
for example, that it increased the risk of harm from the
preexistent condition. Assuming that the jury determines
that the deviation increased the risk of harm from the
preexistent condition, a court uses the substantial factor
test of causation because of the inapplicability of but for
causation to cases where the harm is produced by
concurrent causes. The substantial factor standard
requires the jury to determine whether the deviation, in
the context of the preexistent condition, was sufficiently
significant in relation to the eventual harm to satisfy the
requirement of proximate cause.
Torts > Malpractice & Professional Liability > Healthcare
Providers Torts > ... > Causation > Proximate Cause > General
Overview
HN3 In Gardner v. Pawliw, the New Jersey Supreme
Court has reiterated that it had lessened the traditional
burden of proof on a plaintiff asserting a medical-
malpractice claim for establishing proximate cause in the
case of a plaintiff suffering from a preexistent condition.
The Court again states the proof required from a plaintiff:
A plaintiff suffering from a preexistent condition must
prove that, as a result of a defendant's negligence, she
experienced an increased risk of harm from that
condition, and that the increased risk of harm was a
substantial factor in causing the injury ultimately
sustained.
Torts > Malpractice & Professional Liability > Healthcare
Providers Torts > ... > Causation > Proximate Cause > Foreseeability
of Harm Torts > ... > Proof > Evidence > Province of Court & Jury
HN4 Because it would always be unknown whether
performing the diagnostic test would have helped to
diagnose or treat a preexistent condition, to meet the first
prong of the proximate cause test, the plaintiff must
demonstrate only that the failure to give the test
increased the risk of harm from the preexistent condition,
even if such tests are helpful in a small proportion of
cases. Under the second prong of Scafidi, it is the jury's
responsibility to determine whether the increased risk of
harm resulting from the failure to perform the tests was or
was not a substantial factor in causing the ultimate harm
sustained.
Torts > Malpractice & Professional Liability > Healthcare
Providers Torts > ... > Causation > Proximate Cause > Foreseeability
of Harm Torts > ... > Proof > Evidence > Province of Court & Jury
HN5 The Supreme Court of New Jersey has addressed
the proximate cause issue once again in Reynolds v.
Gonzalez. It again reiterates that New Jersey courts
apply the substantial factor test in medical malpractice
cases involving preexisting conditions. Once a deviation
from the accepted standard of care has been found, the
Court explains the sequential analysis that follows: The
first inquiry in the substantial factor analysis is whether
there is evidence demonstrating that negligent treatment
increased the risk of harm posed by a preexistent
condition. Once that requirement has been satisfied, the
jury next must determine whether the increased risk was
a substantial factor in causing the ultimate harm. Once
the jury determines that the plaintiff has satisfied the two-
prong inquiry, it next must address the appropriate
apportionment of damages.
Torts > Malpractice & Professional Liability > Healthcare
Providers Torts > ... > Elements > Causation > Causation in Fact Torts > ... > Proof > Evidence > Province of Court & Jury
HN6 In Verdicchio v. Ricca, after reviewing the
precedential landscape regarding the substantial factor
test, the New Jersey Supreme Court notes that the Model
Jury Charges, Civil, have been amended to reflect the
holding in Reynolds v. Gonzalez. However, notably,
before doing so, the Court reiterates the two-pronged
proximate cause requirement: Once the plaintiff
demonstrates that the defendant's negligence actually
increased the risk of an injury that later occurs, that
conduct is deemed to be a cause in fact of the injury and
the jury must then determine the proximate cause
question: whether the increased risk was a substantial
factor in bringing about the harm that occurred. In other
words, merely establishing that a defendant's negligent
conduct had some effect in producing the harm does not
automatically satisfy the burden of proving it was a
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substantial factor.
Civil Procedure > ... > Jury Trials > Jury
Instructions > General Overview Civil Procedure > Appeals > Standards of Review > Clearly
Erroneous Review Civil Procedure > Appeals > Standards of
Review > Reversible Errors
HN7 A trial court's interrogatories to a jury are not
grounds for a reversal unless they were misleading,
confusing, or ambiguous. In reviewing a jury interrogatory
for reversible error, a court considers it in the context of
the charge as a whole. An accurate and thorough jury
charge often can cure the potential for confusion that may
be present in an interrogatory.
Torts > ... > Elements > Causation > Causation in Fact Torts > ... > Causation > Proximate Cause > Foreseeability
of Harm
HN8 When there is evidence that a defendant's
negligence increased the risk of harm to the plaintiff it
becomes a jury question whether that increased risk
constituted a substantial factor in producing the injury,
and thus was a proximate cause of the injury. The New
Jersey Supreme Court has rejected the argument that the
substantial factor test for proximate causation is linked to
the percentage of negligence attributed to a particular
defendant.
Civil Procedure > ... > Jury Trials > Jury
Instructions > General Overview
HN9 The New Jersey Supreme Court does not sanction
or approve the Model Civil Jury Charges before
publication by the Model Civil Jury Charge Committee,
although the Supreme Court may, and frequently does,
comment on the sufficiency of a charge in the context of
a particular case. Generally speaking, the language
contained in any model charge results from the
considered discussion amongst experienced jurists and
practitioners. The process by which model jury charges
are adopted in the State of New Jersey is comprehensive
and thorough; model jury charges are reviewed and
refined by experienced jurists and lawyers. But, a model
jury charge does not necessarily reflect the approved
language of the New Jersey Supreme Court itself. Thus,
only when the Court has occasion to address the
contents of an adopted charge can it, a court of
1 To avoid confusion, we will occasionally refer to family
intermediate appellate review, the trial court and
practitioners, rest assured that the language adopted is
consistent with the Court's instructions.
Counsel: Daniel A. Levy argued the cause for
appellant/cross-respondent (Raff & Raff, LLP, attorneys;
Mr. Levy, on the brief).
Heather M. LaBombardi argued the cause for
respondents/cross-appellants (Giblin & Combs, LLC,
attorneys; Ms. LaBombardi and Craig S. Combs, on the
brief).
Judges: Before Judges MESSANO, LIHOTZ and
KENNEDY. The opinion of the court was delivered by
MESSANO, P.J.A.D.
Opinion by: MESSANO
Opinion
[*367] [**666] The opinion of the court was delivered by
MESSANO, P.J.A.D.
Plaintiff, James Flood, is the father of Keisha Flood and
the administrator of her estate. On November 4, 2006,
Keisha was evaluated at St. Joseph's Hospital (St.
Joseph), after complaining of abdominal pain, and
released.1 Two days later, Keisha returned with similar
complaints and underwent evaluation by emergency
room doctors before her admission. A CT scan was
conducted on the morning of November 7, 2006, and
read by defendant Dr. Bhanu Aluri-Vallabhaneni (Aluri), a
radiologist.
It was [***2] alleged that Aluri issued two reports that
morning, one transcribed at 7:38 a.m., a second at 7:39
a.m. It was further alleged that Aluri did not contact
anyone with the results and that this was a deviation from
accepted medical standards. Later that day, at
approximately 1:50 p.m., [**667] Keisha went into
cardiac arrest and was pronounced dead at 2:24 p.m. For
purposes of this appeal [*368] only, we accept plaintiff's
contention that Keisha died of cardiac arrest following
sepsis resulting from a "small bowel obstruction."
Plaintiff filed suit alleging medical malpractice against St.
Joseph and numerous physicians that attended Keisha.
In a second amended complaint, filed more than four
years after Keisha's death on February 18, 2011, plaintiff
members by their first names. We intend no disrespect by this
informality.
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for the first time named Aluri and her employer, defendant
Imaging Subspecialists of North Jersey, LLC (Imaging),
as defendants. On April 4, defendants filed their answer
and subsequently moved to dismiss the wrongful death
claims, contending the statute of limitations had expired.
The trial judge denied defendants' motion.
During trial, several of the originally-named defendants
settled with plaintiff, and two others were dismissed from
the case.2 Ultimately, [***3] the case proceeded to the
jury only as to Aluri.3
We have not been provided with any transcript of the
charge conference, which the judge conducted off the
record with the attorneys. We do not condone such
practice. See R. 1:8-7(a) HN1 ("The court shall, on the
record, rule on the requests prior to closing arguments to
the jury. A verbatim record shall be made of any charge
conference the court holds.").
However, in their briefs, the parties have set forth what
transpired during this initial conference, and there
appears to be little dispute. The judge indicated his
intention to charge the jury utilizing Model Jury Charge
(Civil) 5.50E "Pre-existing Condition--Increased
Risk/Loss of Chance-- [***4] Proximate Cause," (May
2010). The proposed verdict sheet initially prepared by
the court incorporated the first two interrogatories
appended to the model [*369] charge, i.e., the jury was
asked to consider whether plaintiff proved Aluri deviated
from accepted medical standards and whether that
deviation increased the risk of harm posed by Keisha's
"pre-existing condition."
As to each settling defendant, the court's proposed
interrogatories then asked whether Aluri had proven that
the doctor deviated from acceptable medical standards
and if that doctor's deviation increased the risk of harm
posed by Keisha's pre-existing condition. Question 11
then asked the jury to state "whether the increased risk
was a substantial factor in causing Keisha['s] . . . death
by stating in percentages, what portion of the death [was]
a result from . . . the pre-existing condition," Aluri's
"deviation from the standard of care," and deviation of
each of settling doctor. The jury was instructed that "[t]he
total must equal 100%[,]" and "[i]f 100% of the damages
[were] determined to be due to the pre-existing condition,
2 Based on the record provided, which was significantly
abbreviated by apparent consent of the parties, it is unclear
when and how these various defendants settled or were
dismissed from the suit. 3 It appears that there was no claim that Imaging was
then return your verdict for [Aluri]. If any percentages of
the damages [were] a result of . [***5] . . Aluri's deviation,
then proceed to question #12." Question 12 was the
damages question, as to Keisha's pain and suffering, and
question 13 asked the jury to determine the pecuniary
damages associated with Keisha's wrongful death.
[**668] It is undisputed that defense counsel submitted a
different set of jury interrogatories. We gather from the
parties' briefs, defendant contended that because several
doctors had settled, the jury interrogatories should
specifically ask: 1) whether Aluri deviated from accepted
medical standards; 2) whether that deviation increased
the risk of harm from Keisha's pre-existing condition, i.e.,
her bowel obstruction; and 3) whether the increased risk
was a "substantial factor" in causing Keisha's death.
Defense counsel submitted interrogatories that asked the
jury to consider those three questions first.
Defendant contended that only if the jury answered those
three questions affirmatively should it then consider
whether Aluri had proven as to each of the settling
doctors whether that doctor deviated from accepted
medical standards, whether those
deviations [*370] similarly increased the risk of harm to
Keisha and whether the increased risk from each
particular settling [***6] doctors' deviation was a
substantial factor in causing Keisha's death. The ultimate
apportionment question--the extent to which Keisha's
death resulted from her pre-existing condition and to what
extent it resulted from each doctor's negligence--would
abide the results of the jury's answers as to Aluri and
each settling doctor.
On the record, plaintiff objected to defendant's proposed
interrogatories, noting that the third question proposed by
Aluri did not conform to those appended to the model
charge and would "lead[] to confusion." The judge
overruled the objection and agreed to submit the
interrogatories proposed by defendants. As a result, the
judge submitted a verdict sheet that asked the following
three questions first:
1. Has the plaintiff proven by preponderance of the
evidence that Dr. Aluri deviated from accepted
standards of medical practice?
independently negligent. We assume that it was undisputed
Aluri was acting in her capacity as an employee of Imaging, and
the jury was only asked to consider Aluri's negligence. We use
the singular defendant or Aluri throughout the balance of this
opinion.
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(Please circle your answer) Yes No Record your
vote:
If you answered "Yes" to question #1, go to question
#2. If you answered "No" to question #1[,] cease
deliberations.
2. Has the plaintiff proven that Dr. Aluri's deviation
increased the risk of harm posed by the plaintiff's
pre-existing condition?
(Please circle your answer) Yes [***7] No Record
your vote:
If you answered "Yes" to question #2[,] go to
question #3. If you answered "No" to question #2[,]
cease deliberations[.]
3. Was the increased risk a substantial factor in
causing the decedent's death?
(Please circle your answer) Yes No Record your
vote:
If you answered "Yes" to question #[3,] go to
question #[4]. If you answered "No" to question #3[,]
cease deliberations[.]
The ten-person jury deliberated and returned a verdict in
favor of defendant. It found, by a vote of 8-2, that Aluri
had "deviated from accepted standards of medical
practice." It found by a similar vote that the "deviation
increased the risk of harm posed by [Keisha's] pre-
existing condition." However, by a vote of 10-0, the jury
concluded that the "increased risk was not a substantial
factor in causing [Keisha's] death." The judge entered
judgment in favor of Aluri, and plaintiff now appeals.
[*371] Before us, plaintiff raises the following issues for
our consideration:
Point 1: This court should review the trial court's
ruling de novo and remand for a new trial because
the error was not harmless
Point 2: The trial judge committed reversible error by
departing from Model Charge 5.50E [**669] and the
Model [***8] Jury Interrogatories
A) The trial judge should have used the Model
Interrogatories, which conform to the case law,
rather than changing, deleting, and adding new
questions
B) The jury was confused when they were incorrectly
told to answer a yes/no question about substantial
factor
C) The error was amplified since the jury was never
given instructions on the minimum percentage of
fault that would constitute a "substantial factor"
D) The jury was then given an impermissible "bridge
question" that linked the facts that the plaintiff had to
prove with those that Dr. Aluri had to prove
E) The verdict sheet eliminated an important
contention that Dr. Aluri had to prove Aluri cross-appeals, contending that any claim against
Aluri and Imaging for Keisha's wrongful death was barred
by the applicable statute of limitations.
We have considered these arguments in light of the
record and appropriate legal standards. We affirm the
judgment under review; as a result, we do not consider
the cross-appeal and dismiss.
I.
No issue in the field of medical malpractice litigation has
spawned as much discussion and debate as the proper
method by which a jury should assess whether a doctor's
negligence proximately [***9] caused injury to a patient
who suffers an ultimate consequence attributable to that
negligence alone, or in some combination with a pre-
existing medical condition. Because this appeal brings
into stark relief the changing landscape of guidance
issued by our Supreme Court in a series of decisions, the
response of the Committee on Model Civil Jury Charges
to those decisions and the impact upon trial judges who
struggle regularly as a result, we are compelled to provide
some background.
[*372] In Evers v. Dollinger, 95 N.J. 399, 413-17, 471
A.2d 405 (1984), the Court addressed the issue of
causation in the context of allegations that the defendant
doctor's negligence exacerbated a plaintiff's preexisting
illness, and, in combination, caused the plaintiff's ultimate
condition. In reversing a no cause verdict in favor of the
defendant doctor, the Evers Court held that on remand,
[the] plaintiff should be permitted to demonstrate,
within a reasonable degree of medical probability,
that the seven months delay resulting from
defendant's failure to have made an accurate
diagnosis and to have rendered proper treatment
increased the risk of recurrence or of distant spread
of plaintiff's cancer, and that such
increased [***10] risk was a substantial factor in
producing the condition from which plaintiff currently
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suffers.
[Id. at 417, 471 A.2d 405 (emphasis added).]
Only six years later, in Scafidi v. Seiler, 119 N.J. 93, 101-
09, 574 A.2d 398 (1990), the Court again addressed the
issue of causation. As summarized by the Court, in
Scafidi, "the proofs presented as a factual issue whether
the defendant's failure properly to treat and arrest [the
plaintiff's] early labor proximately caused the premature
birth and death of her infant child." Id. at 96, 574 A.2d
398. Adhering to its earlier decision in Evers, the Court
said, "[e]vidence demonstrating within a reasonable
degree of medical probability that negligent treatment
increased the risk of harm posed by a preexistent
condition raises a jury question whether the increased
risk was a substantial factor in producing the ultimate
result." Id. at 108, [**670] 574 A.2d 398 (emphasis
added). HN2 The Court explained:
The rationale underlying the use of a two-pronged
jury instruction bears elaboration. Because this
modified standard of proximate causation is limited
to that class of cases in which a defendant's
negligence combines with a preexistent condition to
cause harm--as distinguished from cases in which
the deviation alone [***11] is the cause of harm--the
jury is first asked to verify . . . that the deviation is
within the class, i.e., that it increased the risk of harm
from the preexistent condition. Assuming that the
jury determines that the deviation increased the risk
of harm from the preexistent condition, we use the
"substantial factor" test of causation because of the
inapplicability of "but for" causation to cases where
the harm is produced by concurrent causes.
[Id. at 108-09, 574 A.2d 398 (emphasis added)
(internal citations omitted).]
[*373] Importantly, the Court noted "[t]he 'substantial
factor' standard requires the jury to determine whether
the deviation, in the context of the preexistent condition,
was sufficiently significant in relation to the eventual harm
to satisfy the requirement of proximate cause." Id. at 109,
574 A.2d 398.
The Scafidi Court then considered whether "a plaintiff's
recovery in Evers-type cases should ordinarily be limited
to lost-chance damages." Id. at 112, 574 A.2d 398
(citations omitted). The Court determined that "a rule that
limits a plaintiff's damages in Evers-type cases to the
value of the lost chance of recovery is an essential
complement to Evers' modification of the proof required
to establish proximate causation." [***12] Ibid. The Court
stated:
On retrial the trial court will instruct the jury on
causation in the manner prescribed by Evers v.
Dollinger, supra, 95 N.J. at 417, 471 A.2d 405.
Consistent with Fosgate v. Corona, [66 N.J. 268,
272-73, 330 A.2d 355 (1974)], to the extent that [the]
defendant seeks to apportion damages, defendant
must produce evidence tending to show that the
infant's premature birth and death could have been
attributable solely to the preexistent condition,
irrespective of defendant's negligence . . . . Based on
the evidence adduced, the jury will be instructed to
determine the likelihood, on a percentage basis, that
the infant's birth and death would have occurred
even if defendant's treatment was faultless. In the
event of a jury verdict against defendant on liability
and damages, the trial court will mold the verdict to
limit defendant's liability to the value of the lost
chance for recovery attributable to defendant's
negligence.
[Id. at 113-14, 574 A.2d 398.]
"In view of the significant change in the law represented
by [its] holding," the Court applied the holding to the case
at issue and, otherwise, prospectively. Id. at 114, 574
A.2d 398.
The model jury charge adopted as a result, Model Jury
Charge (Civil) 5.36E "Pre-existing [***13] Condition--
Increased Risk/Loss Chance--Proximate Cause" (Apr.
1996), noted its intended use in cases where "the plaintiff
has a pre-existing condition and the defendant's
negligence increases the risk of harm by depriving the
plaintiff of a chance of recovery, thus permitting a
modified standard of proximate cause pursuant to Scafidi
. . . ." Id. at 1.
The body of the charge clearly delineated the burden of
proof required of the plaintiff regarding proximate cause
in such a case, i.e., did the deviation increase the risk of
harm posed by the [*374] plaintiff's pre-existing condition
and was that increased risk a substantial factor in
producing the [**671] ultimate injury? Id. at 1-2. Only
then was the jury to consider whether the defendant
proved that the ultimate outcome could be apportioned
and, after that, to express in percentage terms "what is
the likelihood . . . that the plaintiff's ultimate injuries . . .
would have occurred even if defendant's treatment was
proper." Id. at 2.
Appended to the charge were suggested jury
interrogatories that posed three initial questions
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Ron Botelho
regarding the plaintiff's burden of proof.4 Those first three
questions were the same questions posed to the jury in
this [***14] case. Only when all three interrogatories were
answered affirmatively would the jury proceed to assess
the defendant's proof as to apportionment.
HN3 In Gardner v. Pawliw, 150 N.J. 359, 362-63, 696
A.2d 599 (1997), the Court considered whether a similar
proximate cause standard should apply when the
plaintiff's claim of malpractice involved the doctor's failure
to order diagnostic tests. Citing Evers, Scafidi, and
Anderson v. Picciotti, 144 N.J. 195, 205-07, 676 A.2d 127
(1996), the Court reiterated that it "ha[d] lessened the
traditional burden of proof on a plaintiff asserting a
medical-malpractice claim for establishing proximate
cause in the case of a plaintiff suffering from a preexistent
condition." Gardner, supra, 150 N.J. at 375, 696 A.2d
599. The Court again stated the proof required from a
plaintiff:
A plaintiff suffering from a preexistent condition must
prove that, as a result of a defendant's negligence,
she experienced an increased risk of harm from that
condition, and that the increased risk of harm was a
substantial factor in causing the injury ultimately
sustained.
[Ibid. (emphasis added) (citation omitted).]
HN4 Because it would always be [***15] unknown
"whether performing the [diagnostic] test would have
helped to diagnose or treat a preexistent condition," to
meet the first prong of the proximate cause test, "the
plaintiff must demonstrate . . . [only] that the failure
to [*375] give the test increased the risk of harm from the
preexistent condition[,] . . . even if such tests are helpful
in a small proportion of cases." Id. at 387, 696 A.2d 599.
And, importantly for purposes of this case, the Court
reiterated that "[u]nder the second prong of Scafidi, it is
the jury's responsibility to determine whether the
increased risk of harm resulting from the failure to
perform the tests was or was not a substantial factor in
causing the ultimate harm sustained." Id. at 389, 696
A.2d 599 (emphasis added).
HN5 The Court addressed the proximate cause issue
once again in Reynolds v. Gonzalez, 172 N.J. 266, 280-
90, 798 A.2d 67 (2002). It again reiterated that New
Jersey courts apply the "substantial factor test in medical
malpractice cases involving preexisting conditions." Id. at
280, 798 A.2d 67. Once a deviation from the accepted
4 We have attached as Exhibit A the form interrogatories
standard of care has been found, the Court explained the
sequential analysis that follows:
[T]he first inquiry in the substantial factor analysis is
whether there is evidence [***16] "demonstrating . . .
that negligent treatment increased the risk of harm
posed by a preexistent condition." [Scafidi, supra,
119 N.J. at 108, 574 A.2d 398.] Once that
requirement has been satisfied, the jury next must
determine whether the increased risk was a
substantial factor in causing the ultimate harm.
[Reynolds, supra, 172 N.J. at 282-83, 798 A.2d 67
(emphasis added) (citation omitted).]
[**672] "Once the jury determines that the plaintiff has
satisfied the two-prong inquiry, it next must address the
appropriate apportionment of damages." Id. at 283, 798
A.2d 67 (emphasis added).
The Reynolds Court then considered the specific issue
raised by the plaintiff:
Plaintiff asserts that the substantial factor test, in
addition to being confusing, is unnecessary in light of
our decision in Fosgate, supra, limiting a plaintiff's
recovery to that portion of the harm caused by a
defendant's negligence. 66 N.J. at 272-73 [330 A.2d
355]. According to plaintiff, the jury should be
allowed to apportion damages once it determines
that a defendant's negligence has increased the risk
of harm posed by the preexisting condition. We
reject that contention because plaintiff's formulation
dispenses with the need for proof of any causal
connection between defendant's [***17] negligence
and the resultant harm.
[*376] [Id. at 286, 798 A.2d 67 (emphasis added).] Nonetheless, based on the facts before it, the Court
concluded:
[W]e reasonably can infer that the jury's verdict may
have resulted from some confusion about plaintiff's
burden under the substantial factor causation test.
We are persuaded that a clearer instruction on the
substantial factor test would have been preferable.
Because we remand for a new trial in this case, a
modified substantial factor charge explaining the
legal significance of the word substantial should be
given to the jury on retrial.
[Id. at 288, 798 A.2d 67.]
appended to the charge.
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The Court referred the matter to the Committee on Model
Civil Jury Charges again, ibid., and suggested, pending
modification, the following instruction be used:
[A] defendant's deviation need not be the only cause,
nor a primary cause, for the deviation to be a
substantial factor in producing the ultimate result.
However, defendant's negligent conduct cannot be a
remote or an inconsequential contributing factor. It
must play a role that is both relevant and significant
in bringing about the ultimate injury. The relative
weight of an increased risk that is found to constitute
a substantial factor can be reflected [***18] by the
jury in the apportionment of damages between the
increased risk and the pre-existing condition. The
trial court also should explain to the jury that
[s]ome other event [that] is a contributing factor
in producing the harm may have such a
predominant effect in bringing it about as to
make the effect of the actor's negligence
insignificant and, therefore, to prevent it from
being a substantial factor.
[Ibid. (emphasis added) (quoting Restatement
(Second) of Torts § 433 cmt. d (1965))]
The model charge was again revised (the Model Charge).
See Model Jury Charge (Civil) 5.50E "Pre-existing
Condition--Increased Risk/Loss of Chance--Proximate
Cause" (Feb. 2004).5 The charge now provided:
Second, the plaintiff must prove that the increased
risk was a substantial factor in producing the ultimate
harm or injury. If the negligent act was only remotely
or insignificantly related to the ultimate harm or
injury, then the negligent act [**673] does not
constitute a substantial factor.6 However, the
defendant's negligence need not be the only cause,
nor even a primary cause, of an injury for the
negligence to [*377] be a substantial factor in
producing the ultimate harm or injury. Whether the
increased risk [***19] was a substantial factor is to
be reflected in the apportionment of damages
between the increased risk and the preexisting
condition. If under all of the circumstances . . . you
find that the plaintiff may have suffered lesser
injuries if the defendant was not negligent, then the
5 The Model Civil Jury Charges were reorganized and
renumbered in October 2007. See 190 N.J.L.J. 506 (2007). 6 To this point, the language was nearly identical to that
defendant is liable for the plaintiff's increased
injuries. On the other hand, if you find that the plaintiff
would have suffered the same injuries even if the
defendant was not negligent, then the defendant is
not liable to the plaintiff.
[Id. at 2-3 (footnotes omitted).]
This instruction clearly met the directive of the Reynolds
court to modify the "substantial factor charge explaining
the legal significance of the word substantial." Reynolds,
supra, 172 N.J. at 288, 798 A.2d 67.
The jury interrogatories appended to the revised Model
Charge, however, differed significantly from the prior
interrogatories.7 Questions 1 and 2 remained the same,
asking the jury to determine if the doctor had deviated
from accepted standards and [***20] if the deviation
increased the risk of harm to the plaintiff. Question 3,
however, now focused the jury's attention on
apportionment, clearly explaining that on this issue, the
defendant bore the burden of proof:
3) Has the defendant proven that some portion of the
plaintiff's ultimate injury would have occurred, even
if the defendant's treatment was proper?
[Model Jury Charge (Civil) 5.50E, supra, at 7.]
If the jury answered question 3 affirmatively, it was
directed to answer question 4:
4) State whether the increased risk was a substantial
factor in causing the plaintiff's damages by stating, in
percentages, what portion of the ultimate injury is a
result from:
A. The pre-existing condition %
B. Dr. 's deviation from the standard of care %
The total must equal 100%. If 100% of the damages
are determined to be due to the preexisting
condition, then return your verdict for the defendant.
If any percentage of the damages are the result of
the defendant(s) fault, then proceed to interrogatory
[five].
[Ibid.]
contained in the prior model charge. 7 We have attached a copy of the interrogatories appended to
the Model Charge as Exhibit B.
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[*378] Critical to the case before us, if the jury answered
question 3 in the negative, it [***21] was directed
immediately to question 5, the damages question, ibid.,
having been told in the body of the instructions that "the
defendant is responsible for all of the plaintiff's injuries
unless the defendant is able to reasonably apportion the
damages." Id. at 5. As a result, if the defendant failed to
shoulder his/her burden of proof on apportionment, a jury
following the model interrogatories is never asked to find
whether the increased risk was a "substantial factor" in
bringing about the ultimate injury. Instead, use of the
model interrogatories potentially relieves the plaintiff of
proving the "second-prong" of the proximate cause
requirement. Such a [**674] result is simply contrary to
the case law we have cited at length and was specifically
rejected in Reynolds.
HN6 In Verdicchio v. Ricca, 179 N.J. 1, 30, 843 A.2d 1042
(2004), after reviewing the precedential landscape
regarding the "substantial factor" test, the Court noted
"[t]he relevant Model [Jury] Charges (Civil) . . . have . . .
been amended to reflect our holding in Reynolds v.
Gonzalez." Id. at 30, 843 A.2d 1042.8 However, notably,
before doing so, the Court again reiterated the two-
pronged proximate cause requirement:
Once the plaintiff demonstrates that [***22] the
defendant's negligence actually increased the risk of
an injury that later occurs, that conduct is deemed to
be a cause "in fact" of the injury and the jury must
then determine the proximate cause question:
whether the increased risk was a substantial factor
in bringing about the harm that occurred.
[Id. at 24, 843 A.2d 1042 (emphasis added).]
"In other words, merely establishing that a defendant's
negligent conduct had some effect in producing the harm
does not automatically satisfy the burden of proving it was
a substantial factor[.]" Id. at 25, 843 A.2d 1042.
[*379] II.
We return to the appeal before us. Plaintiff concedes that
the judge properly instructed the jury using the Model
Charge. In other words, the judge told the jury it must first
consider whether plaintiff proved Aluri deviated from
accepted medical standards, and then consider whether
that deviation "increased the risk of harm posed by the
plaintiff's preexisting condition." The judge then provided
8 The Model Charge has since been revised again. See Model
Jury Charge (Civil) 5.50E "Pre-existing condition--Increased
verbatim [***23] the Model Charge on "substantial
factor." Plaintiff's claim of error relates solely to the
interrogatories on the verdict sheet, specifically, the
insertion of question 3, requiring the jury to find plaintiff
proved the increased risk from Aluri's deviation was a
substantial factor in bringing about Keisha's death.
HN7 A "trial court's interrogatories to a jury are not
grounds for a reversal unless they were misleading,
confusing, or ambiguous." Sons of Thunder, Inc. v.
Borden, Inc., 148 N.J. 396, 418, 690 A.2d 575 (1997). In
reviewing a jury interrogatory for reversible error, we
"consider it in the context of the charge as a whole. An
accurate and thorough jury charge often can cure the
potential for confusion that may be present in an
interrogatory." Ponzo v. Pelle, 166 N.J. 481, 491, 766
A.2d 1103 (2001) (citation omitted).
The questions on the verdict sheet tracked the language
of the current Model Charge and clearly explained those
issues upon which plaintiff bore the burden of proof. We
recognize that the questions posed in this case were not
those appended to the Model Charge. However, the
interrogatories used, i.e., questions 1, 2 and the disputed
question 3, properly reflected the sequential analysis
required [***24] by Evers, Scafidi, Gardner, Reynolds
and Verdicchio. Because the charge was correct, and the
questions posed on the jury verdict sheet correctly stated
the law, any deviation was insignificant. Wade v. Kessler
Inst., 172 N.J. 327, 341, 798 A.2d 1251 (2002).
We reject plaintiff's specific arguments to the contrary.
For example, plaintiff contends that the deviation from the
model [*380] [**675] interrogatories "do[es] not
adequately focus the attention of the jury on the key
issues." In our mind, the interrogatories used in this case
explicitly focused the jury's attention on those issues for
which plaintiff bore the burden of proof. As the Court
explained in Scafidi, supra, 119 N.J. at 113-14, 574 A.2d
398, only after a plaintiff shoulders his/her burden should
the jury focus its attention on the issue for which a
defendant bears the burden of proof, i.e., apportionment
of damages. As the Scafidi court noted, conceptually this
is so because proof of apportionment relates solely to a
limitation on damages to which the plaintiff otherwise
would be entitled. Ibid. As we have noted, the current
model interrogatories potentially relieve a plaintiff of
proving the necessary elements of proximate cause by
eliminating the need to prove [***25] any increased risk
Risk/Loss of Chance--Proximate Cause" (May 2010). There
were no substantive changes in the instructions or the model
interrogatories.
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was a substantial factor. The Reynolds Court specifically
rejected such a result. See Reynolds, supra, 172 N.J. at
286, 798 A.2d 67(noting that would "dispense[] with the
need for proof of any causal connection between
defendant's negligence and the resultant harm"); see
also Verdicchio, supra, 179 N.J. at 43, 843 A.2d
1042(LaVecchia, J., dissenting) ("In permitting a relaxed
proof requirement on the issue of damages to a Scafidi
plaintiff, this Court did not . . . intend that a plaintiff be able
to skip the step that requires establishment of a prima
facia (sic) case on causation.").
Plaintiff also argues that the addition of a separate
"substantial factor" question confused the jury because it
contradicted the jury charge, which stated that "[w]hether
the increased risk was a substantial factor is to be
reflected in the apportionment of damages between the
increased risk and the preexisting condition." Model Jury
Charge (Civil) 5.50E, supra, at 3 (emphasis added).
However, this overlooks the instructions that preceded
the quoted passage. The jury was first told, in accordance
with the Model Charge, that "the plaintiff must prove that
the increased risk was a substantial factor in
producing [***26] the ultimate harm or injury." The term
"substantial factor" was then defined as per the Court's
directive in Reynolds. The interrogatories [*381] actually
used in this case did not contradict the Model Charge's
language.
Plaintiff contends that any numerical answer to question
4's percentage allocation per force demonstrates plaintiff
succeeded in proving the increased risk was a substantial
factor. Conversely, if the jury found defendant's
proportionate responsibility was zero in question 4, it
would have necessarily found that plaintiff failed to prove
the increased risk was a "substantial factor." Plaintiff cites
to our decision in Velazquez v. Jimenez, 336 N.J. Super.
10, 763 A.2d 753 (App.Div.2000), aff'd on other grounds,
172 N.J. 240, 798 A.2d 51 (2002), in support of his
position.
We find no quarrel with plaintiff's essential point, that
even a small percentage allocation of damages to
defendant's deviation and the accompanying increased
risk is sufficient to sustain a finding that the increased risk
was a substantial factor. However, in our opinion,
Velazquez clearly points out the error attendant to the
use of the Model Charge's current form interrogatories.
In Velazquez, supra, 336 N.J. Super. at 17-18, 763 A.2d
753, the [***27] jury found in favor of the plaintiff and
determined that the plaintiffs' child's death resulted from
a preexisting condition in combination with the
negligence of a settling doctor, Jiminez, and Dr. Ranzini,
who proceeded to trial. It apportioned the ultimate
outcome as 5% from the pre-existing condition, 92% from
Jiminez's negligence and 3% from Ranzini's. Ibid. The
judge sua sponte entered judgment notwithstanding the
verdict [**676] in favor of Ranzini, reasoning the jury's
verdict demonstrated Ranzini was not negligent as a
matter of law because, in part, the jury's percentage
allocation demonstrated Ranzini's negligence was not a
"substantial factor." Id. at 18, 31, 763 A.2d 753.
We reversed. Citing Scafidi, we noted that HN8 "where
there is evidence that a defendant's negligence
increased the risk of harm to the plaintiff it becomes a jury
question whether that increased risk constituted a
substantial factor in producing the injury, and thus was a
proximate cause of the injury." Velazquez, supra, 336
N.J. Super. at 31, 763 A.2d 753 (citations omitted). Citing
Dubak [*382] v. Burdette Tomlin Mem'l Hosp., 233 N.J.
Super. 441, 452, 559 A.2d 424 (App.Div.), certif. denied,
117 N.J. 48, 563 A.2d 817 (1989), we noted that "[w]e
have rejected the argument [***28] that the substantial
factor test for proximate causation is linked to the
percentage of negligence attributed to a particular
defendant." Ibid. We concluded
[t]he jury found that Dr. Ranzini's deviation from
accepted standards of medical care increased the
risk of harm to Conor and that this increased risk was
a substantial factor in Conor's death. Because the
jury's finding on proximate cause is consistent with
its finding that Dr. Ranzini was 3% negligent, the
proximate cause finding provided no basis to
overturn the jury's verdict against Dr. Ranzini.
[Id. at 31-32, 763 A.2d 753.]
We note that Velazquez was decided before Reynolds,
and before the Model Charge was amended and the
current interrogatories were appended thereto. Although
not expressly discussed in the opinion, we conclude from
the language used that the jury was utilizing the old form
interrogatories, i.e., that it specifically found Ranzini
deviated, the deviation increased the risk of death and
the increased risk was a substantial factor in causing the
death of plaintiffs' child. More importantly for our
purposes, however, was our recognition in Velazquez
that a plaintiff's proximate cause burden remained two-
pronged, i.e., that the [***29] deviation increased the risk
of harm and the increased risk was a substantial factor
that led to the ultimate result. Once that burden is met,
the defendant's ability to apportion damages to even a
small percentage of responsibility does not negate the
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jury's proximate cause finding in the first instance. Such
a finding only limits the damages for which the defendant
is responsible. See Scafidi, supra, 119 N.J. at 113-14,
574 A.2d 398.
We fail to see, therefore, why, in utilizing the current
interrogatories, a jury should be directed to answer
question 4, which contains a necessary element of a
plaintiff's case, only after a defendant has borne his/her
burden of proof. Without any explicit direction to the jury,
question 4 of the model interrogatories requires the jury
to enter its finding on two issues for which the burdens of
proof have been separately allocated by the Court,
i.e., [*383] plaintiff's requirement to prove proximate
cause by demonstrating the increased risk was a
substantial factor, and defendant's obligation to prove
some percentage of damages is attributable solely to the
pre-existing condition. Moreover, as already noted, if a
defendant fails to persuade the jury on question 3, the
jury [***30] never is required to find that the increased risk
was a substantial factor at all.
Plaintiff also urges it was error to deviate from the model
interrogatories because the questions as posed
"eliminated an important contention that . . . Aluri had to
prove[,]" specifically, that Keisha's death would have
occurred even with proper care. See Model Jury Charge
(Civil) 5.50E, [**677] Interrogatory 3. However, in this
case, the jury never reached that issue having found that
plaintiff failed to prove Aluri's negligence was a
substantial factor.9
Lastly, plaintiff urged at oral argument that the Reynolds
Court explicitly approved the form interrogatories
appended to the Model Charge. We digress to first note
that unlike many of the Supreme Court Committees that
regularly file reports with the Court on a cyclical basis,
seeking approval of suggested amendments to the Rules
of Court or the Rules of Evidence, the Committee on
Model Civil Jury Charges does not.
As a result, HN9 "[t]he New Jersey Supreme Court does
not sanction or approve the Model [***31] Civil Jury
Charges before publication by the Model Civil Jury
Charge Committee, although the Supreme Court may,
and frequently does, comment on the sufficiency of a
charge in the context of a particular case." Model Civil
Jury Charges, General Comments, available at
http://www.judiciary.state.nj.us/civil/charges/General%2
0comment s.pdf. Generally speaking, the language
contained in any model charge results from the
9 Plaintiff's contention that the interrogatories used contained a
considered discussion amongst experienced jurists and
practitioners. State v. R.B., 183 N.J. 308, 873 A.2d
511 [*384] (2005) ("The process by which model jury
charges are adopted in this State is comprehensive and
thorough; our model jury charges are reviewed and
refined by experienced jurists and lawyers."). But, a
model jury charge does not necessarily reflect the
approved language of the Court itself. Thus, only when
the Court has occasion to address the contents of an
adopted charge can we, a court of intermediate appellate
review, the trial court and practitioners, rest assured that
the language adopted is consistent with the Court's
instructions. See, e.g., Verdicchio, supra, 179 N.J. at 30,
843 A.2d 1042 (approving instructions); see also Morlino
v. Med. Ctr. of Ocean Cnty., 152 N.J. 563, 582-90, 706
A.2d 721 (1998) [***32] (concluding the medical
judgment charge needed modification and referring the
matter to the Committee on Model Civil Jury Charges).
Before us, plaintiff acknowledged that the opinion in
Reynolds does not specifically address the form
interrogatories appended to the Model Charge, and
plaintiff furnished no evidence that the Court has
specifically addressed and approved the propriety of the
form interrogatories. We therefore reject the claim that
the Court has approved the use of the model
interrogatories appended to the current charge.
III.
In sum, we affirm the judgment under review. Plaintiff
failed to prove that Aluri's deviation, while increasing the
risk of harm to Keisha, was a substantial factor in bringing
about her death. The judge's instructions followed the
language of the Model Charge, and the interrogatories
used did not mislead the jury or misstate the law.
We are, nonetheless, firmly convinced that the Model
Charge jury interrogatories are erroneous. As written, the
interrogatories potentially relieve the plaintiff of his/her
burden of proving both parts of the lessened proximate
cause standard applicable to these types of medical
malpractice lawsuits. And, as written, the [***33] jury
interrogatories combine for the jury's determination in a
single question two separate issues, one, for which
the [*385] plaintiff bears the initial burden of proof --
proximate cause — and, a second, [**678] for which the
defendant bears the burden of proof, but only after
plaintiff has succeeded -- apportionment of damages.
We express no opinion as to whether a single second
question -- "Has plaintiff proven that defendant's
"bridge question" lacks sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(1)(E).
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deviation increased the risk of harm posed by plaintiff's
pre-existing condition and was the increased risk of harm
a substantial factor in causing the ultimate result?" -- is
preferable to two separate questions. We urge the
Committee on Model Civil Jury Charges to revisit the
issue, and, in the interim, we specifically disapprove of
the continued use of the model interrogatories as
currently written.
Based upon our conclusion, we choose not to consider
defendant's cross-appeal, and it is dismissed.
Affirmed.
EXHIBIT A: CHARGE 5.36E (Apr. 1996) -
Interrogatories
JURY INTERROGATORIES
1) Did defendant Dr. deviate from accepted standards
of medical practice?
Yes No
If your answer is "Yes", proceed to interrogatory 2).
If your answer is "No", return your verdict.
2) Did [***34] defendant Dr. 's deviation increase the
risk of harm posed by plaintiff's pre-existing condition?
Yes No
If your answer is "Yes", proceed to interrogatory 3).
[*386] If your answer is "No", return your verdict.
3) Was the increased risk a substantial factor in
producing the ultimate injury?
Yes No
If your answer is "Yes", proceed to interrogatory 4).
If your answer is "No", return your verdict.
4) Has the defendant, Dr. , proven that some portion of
the plaintiff's ultimate injury would have occurred even if
defendant Dr. 's treatment was proper?
[**679] Yes No
If your answer is "Yes", proceed to interrogatory 5).
If your answer is "No", proceed to interrogatory 6).
5) Stated in percentages, what portion of the ultimate
injury as a result from: Go to table1
6) What amount of money would fairly and reasonably
compensate plaintiff for his/her injury?
$
[*387] EXHIBIT B: CHARGE 5.50E (May 2010) -
Interrogatories
JURY INTERROGATORIES
1) Did the defendant, Dr. , deviate from accepted
standards of medical practice?
Yes If your answer is "Yes," proceed to question 2.
No If your answer is "No," return your verdict [***35] for
the defendant.
2) Did the defendant's, Dr. 's, deviation increase the risk
of harm posed by the plaintiff's preexisting condition?
Yes If your answer is "Yes," proceed to question 3.
No If your answer is "No," return your verdict for the
defendant.
3) Has the defendant proven that some portion of the
plaintiff's ultimate injury would have occurred, even if the
defendant's treatment was proper?
Yes If your answer is "Yes," proceed to question 4.
No If your answer is "No," proceed to question 5.
4) State whether the increased risk was a substantial
factor in causing the plaintiff's damages by stating, in
percentages, [**680] what portion of the ultimate injury is
a result from: [*388]
Go to table2
(The total must equal 100%. If 100% of the damages are
determined to be due to the preexisting condition, then
return your verdict for the defendant. If any percentage of
the damages are the result of the defendant(s) fault, then
proceed to interrogatory 5.)
5) What amount of money would fairly and reasonably
compensate the plaintiff for his/her: Go to table3
6) [***36] What amount of money would fairly and
reasonably compensate the plaintiff's spouse [per quod
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claimant] for his/her loss of services: $
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Table1 (Return to related document text) A. The pre-existing condition % B. Dr. 's negligence (the loss of chance). % 100%
Table1 (Return to related document text) Table2 (Return to related document text)
A. The pre-existing condition % B. Dr. 's deviation from the standard of care % Total 100 %
Table2 (Return to related document text) Table3 (Return to related document text)
Past pain and suffering $ Future pain and suffering $ Past medical bills $ Future medical bills $ Past lost income $ Future lost income $
Table3 (Return to related document text)
End of Document
90
--- Reprinted with permission from LexisNexis.
Positive As of: October 24, 2016 11:24 AM EDT
Estate of Kotsovska, ex rel. Kotsovska v. Liebman
Supreme Court of New Jersey March 16, 2015, Argued; June 11, 2015, Decided
A-89 September Term 2013, 073861
Reporter 221 N.J. 568; 116 A.3d 1; 2015 N.J. LEXIS 568
ESTATE OF MYROSLAVA KOTSOVSKA, BY OLENA
KOTSOVSKA, ADMINISTRATRIX, PLAINTIFF-
APPELLANT, v. SAUL LIEBMAN, DEFENDANT-
RESPONDENT.
Prior History: On certification to the Superior Court,
Appellate Division, whose opinion is reported at 433 N.J.
Super. 537, 81 A.3d 715 (App. Div. 2013) [***1] . Estate of Kotsovska v. Liebman, 433 N.J. Super. 537, 81 A.3d 715, 2013 N.J. Super. LEXIS 186 (App.Div., 2013)
Core Terms decedent, jury charge, factors, employment status,
workers' compensation, independent contractor,
employees, parties, social legislation, purposes, trial
court, jury instructions, provisions, injuries, reversal,
cases, right to control, benefits, primary jurisdiction,
compensability, terminable, disputes, applies, certif,
courts, jury's, performing services, method of payment,
controlling test, work-related
Case Summary
Overview
HOLDINGS: [1]-In a negligence suit wherein the workers'
compensation exclusivity defense pursuant to the
Workers' Compensation Act, N.J.S.A. § 34:15-8, was
raised, the Court held that when there is a genuine
dispute regarding a worker's employment status, and
plaintiff elects to file a complaint only in the New Jersey
Superior Court Law Division, the Superior Court has
concurrent jurisdiction to resolve the dispute; [2]-The
Court further held that the test for determining the aspects
of a non-traditional work relationship set out in the case
law test of Pukowski-D'Annunzio applies in the context of
a dispute over the applicability of the Compensation
Statute; [3]-The Court further held that although the jury's
charge could have been more artfully drafted, it did not
misinform the jury as to the controlling law and was
neither ambiguous nor misleading as to the relevant
factors for consideration under the Pukowski-D'Annunzio
approach.
Outcome Judgment reversed; verdict of jury reinstated.
LexisNexis® Headnotes
Workers' Compensation & SSDI > Exclusivity > General
Overview Governments > Legislation > Interpretation Governments > Legislation > Types of Statutes
HN1 The New Jersey legislature has enacted the
Workers' Compensation Act (Compensation Act),
N.J.S.A. §§ 34:15-1 to 34:15-142, to address the variety
of difficulties workers encountered in attempting to
recover in tort against their employers for work-related
injuries. The legislature sought to accomplish that by
establishing a no fault system of compensation for
workers who are injured or contract a disease in the
course of employment. Thus, the Compensation Act
provides employees who have sustained work-related
injuries medical treatment and limited compensation
without regard to the negligence of the employer.
N.J.S.A. § 34:15-7. In essence, the Compensation Act is
a social compact, an historic trade-off whereby
employees relinquish their right to pursue common-law
remedies in exchange for prompt and automatic
entitlement to benefits for work-related injuries. The
91
Page 2 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
remedial purpose of the Workers' Compensation Act is to
make benefits readily and broadly available to injured
workers through a non-complicated process. The New
Jersey Supreme Court has long recognized that this
system for the compensation of injured workers is
remedial social legislation and should be given liberal
construction in order that its beneficent purposes may be
accomplished. Thus, the statute is broadly construed in
favor of coverage.
Business & Corporate Compliance > ... > Workers'
Compensation & SSDI > Exclusivity > Employees &
Employers Labor & Employment Law > Employment
Relationships > Employment Contracts > General Overview
HN2 Under the Workers' Compensation Act, N.J.S.A. §
34:15-7, when employer and employee shall by
agreement, either express or implied accept the
provisions of the Compensation Act, employers shall
compensate employees for work-related injuries arising
out of and in the course of employment without regard to
the negligence of the employer. Absent an express
disclaimer to the contrary, all parties to every
employment contract made after July 1911 are presumed
to have accepted the provisions of the Compensation Act
and have agreed to be bound thereby. N.J.S.A. § 34:15-
9. Once the employment contract is created and the
employee-employer relationship is established, such
agreement shall be a surrender by the parties thereto of
their rights to any other method, form or amount of
compensation or determination thereof than as provided
in the article and an acceptance of all the provisions of
this article, and shall bind the employee and for
compensation for the employee's death shall bind the
employee's personal representatives. N.J.S.A. § 34:15-8.
Business & Corporate Compliance > ... > Workers'
Compensation & SSDI > Exclusivity > Employees &
Employers
HN3 N.J.S.A. § 34:15-8 is intended to ensure that
workers' compensation provides the exclusive remedy for
employees who sustain work-related injuries. As a result,
although the employer assumes an absolute liability, he
gains immunity from common-law suit, even though he
be negligent, and is left with a limited and determined
liability in all cases of work-connected injury. The elective
provisions of N.J.S.A. § 34:15-8 are only intended to deny
employees their traditional common law tort remedies.
The New Jersey workers' compensation scheme also
allows either the employer or the employee to elect to
reject the ordinary system of compensatory non-fault
liability, known as Article II coverage, in favor of Article I
coverage under N.J.S.A. §§ 34:15-1 to 34:15-7. Article I
coverage provides that the employee may recover
against the employer under common-law negligence, and
that the employee's claim may not be defeated by the
defenses of ordinary contributory negligence, N.J.S.A. §
34:15-1, assumption of risk, N.J.S.A. § 34:15-2, or
negligence of a fellow-employee, N.J.S.A. § 34:15-2.
Business & Corporate Compliance > ... > Workers'
Compensation & SSDI > Exclusivity > Employees &
Employers Workers' Compensation & SSDI > Exclusivity > Exceptions Workers' Compensation & SSDI > Coverage > Employment
Status > Employees
HN4 Ascribing to the statutory words their ordinary
meaning and significance, it is clear that the benefits and
the limitations of the Workers' Compensation Act,
N.J.S.A. § 34:15-7, apply only to employees who, by
virtue of their employment agreements, have accepted its
provisions. The Compensation Act defines the term
employee as synonymous with servant, to include all
natural persons, including officers of corporations, who
perform a service for an employer for financial
consideration. N.J.S.A. § 34:15-36. By contrast,
independent contractors, which are not addressed in the
Compensation Act, are neither entitled to benefits nor
subject to the limitations of the Compensation Act. An
independent contractor is one who, carrying on an
independent business, contracts to do a piece of work
according to his own methods, and without being subject
to the control of his employer as to the means by which
the result is accomplished, but only as to the result of
work. N.J.S.A. § 34:15-36 contains exemptions for (1)
employees eligible under the federal Longshore and
Harbor Workers' Compensation Act, for benefits payable
with respect to accidental death or injury, or occupational
disease or infection; and (2) casual employments.
Business & Corporate Compliance > ... > Workers'
Compensation & SSDI > Exclusivity > Employees &
Employers Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors Workers' Compensation & SSDI > Coverage > Employment
Status > Employees
HN5 Parties cannot be presumed to have accepted the
provisions of the Workers' Compensation Act, N.J.S.A.
§§ 34:15-1 to 34:15-142, including the exclusive remedy
provision, until a threshold determination is made as to
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Page 3 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
whether the worker was an employee or an independent
contractor.
Torts > Procedural Matters > Commencement &
Prosecution > Subject Matter Jurisdiction Civil Procedure > ... > Subject Matter
Jurisdiction > Jurisdiction Over Actions > Concurrent
Jurisdiction
HN6 Certainly, the a New Jersey Superior Court should
be steadfast in its readiness to resist the assertion of
jurisdiction in cases where it is evident the matter should
be tried elsewhere. On the other hand, where a genuine
question of jurisdiction, exclusive, primary or concurrent,
is involved a court perceives no statutory injunction
against the trial of that issue in either forum. Indeed, as
one commentator has observed, despite the exclusivity
of the workers' compensation remedy, the Superior Court
has jurisdiction to determine the existence of the
employment relationship and such other employment
issues as are raised by way of defense to the employee's
tort action.
Administrative Law > Separation of Powers > Primary
Jurisdiction
HN7 The doctrine of primary jurisdiction is applicable
when a case is properly filed in the New Jersey Superior
Court but the court declines original jurisdiction, referring
specific issues to the appropriate administrative body.
Thus, when enforcement of a claim requires resolution of
an issue within the special competence of an
administrative agency, a court may defer to a decision of
that agency. The decision to invoke the doctrine of
primary jurisdiction rests within the sound discretion of
the trial court. Accordingly, the trial court's decision here
should not be disturbed on appeal unless the decision
was made without a rational explication, inexplicably
departed from established practices, or rested on an
impermissible basis. Although no formula exists to
evaluate the applicability of primary jurisdiction, the New
Jersey Supreme Court has stated that New Jersey courts
have been guided by a four-part test, in which the
following factors are considered: 1) whether the matter at
issue is within the conventional experience of judges; 2)
whether the matter is peculiarly within the agency's
discretion, or requires agency expertise; 3) whether
inconsistent rulings might pose a danger of disrupting the
statutory scheme; and 4) whether prior application has
been made to the agency.
Workers' Compensation & SSDI > Coverage > Employment
Status > Employees
Labor & Employment Law > Employment
Relationships > General Overview
HN8 The question of a worker's employment status is a
matter that is often determined by trial judges and juries.
In addition to workers' compensation, the definition of the
term employee for purposes of vicarious liability,
employers' liability, labor legislation, unemployment
compensation, social security and miscellaneous
enactments applicable to employees, has probably
produced more reported cases than any definition of
status in the modern history of law. While the New Jersey
Supreme Court acknowledges that the forum best suited
to decide employment issues is the Workers'
Compensation Court, the Compensation Court is in no
better position to make the threshold determination of a
worker's employment status than the New Jersey
Superior Court. The Superior Court is often tasked with
making that determination in a variety of contexts. Thus,
that determination is not peculiarly within the agency's
discretion, or one which requires agency expertise.
Civil Procedure > ... > Jury Trials > Jury
Instructions > General Overview
HN9 A jury is entitled to an explanation of the applicable
legal principles and how they are to be applied in light of
the parties' contentions and the evidence produced in the
case. Thus, a proper jury charge must correctly state the
applicable law, outline the jury's function and be clear in
how the jury should apply the legal principles charged to
the facts of the case at hand. To accomplish those goals,
the jury charge should be tailored to the specific facts of
the case.
Civil Procedure > ... > Jury Trials > Jury
Instructions > Objections Civil Procedure > ... > Standards of Review > Harmless &
Invited Errors > Harmless Error Rule
HN10 When a party objects to the jury charge at trial, the
reviewing court should reverse on the basis of that
challenged error unless the error is harmless. R. 2:10-2.
An error is harmful only where that error is clearly capable
of producing an unjust result. R. 2:10-2. When presented
with a contested jury charge, a court must examine the
charge as a whole, rather than focus on individual errors
in isolation.
Labor & Employment Law > Employment
Relationships > Independent Contractors Workers' Compensation & SSDI > Coverage > Employment
Status > Employees
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Page 4 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors
HN11 New Jersey courts have utilized two different but
related tests to distinguish employees from independent
contractors: (1) the control test, which is grounded in the
common law master-servant relationship; and (2) the
relative nature of the work test, which is used in various
situations in which the control test does not emerge as
the dispositive factor. Under the control test, the
factfinder considers the extent of the employer's right to
control the work of the employee. That test takes into
consideration a variety of employment conditions,
including the degree of control exercised by the employer
over the means of completing the work, the source of the
worker's compensation, the source of the worker's
equipment and resources, the employer's termination
rights, as well as the right of termination and the method
of payment.
Workers' Compensation & SSDI > Coverage > Employment
Status > Employees Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors Labor & Employment Law > Employment
Relationships > Independent Contractors
HN12 The greater the degree of control exercised by the
employer, the more likely the worker will be considered
an employee. By contrast, the relative nature of the work
test requires a court to examine the extent of the
economic dependence of the worker upon the business
he serves and the relationship of the nature of his work
to the operation of that business. Under that test, the
employer's control is a single, but not dispositive, factor.
Instead, it focuses on whether there is substantial
economic dependence upon the employer by the
employee and whether there has been a functional
integration of their respective operations. The control test
is in practice giving way to the relative-nature-of-the-work
test in part to address employers' efforts to circumvent
the inconveniences created by the Workers'
Compensation Act by, for example, subcontracting
portions of the employer's production and distribution
process.
Labor & Employment Law > Employment
Relationships > General Overview
HN13 New Jersey courts have long recognized that, in
certain settings, exclusive reliance on a traditional right-
to-control test to identify who is an employee does not
necessarily result in the identification of all those workers
that social legislation seeks to reach. For example, where
the type of work requires little supervision over details for
its proper prosecution and the person performing it is so
experienced that instructions concerning such details
would be superfluous, the factor of control becomes
inconclusive, and reorientation toward a correct legal
conclusion must be sought by resort to more realistically
significant criteria.
Labor & Employment Law > ... > Whistleblower Protection
Act > Scope & Definitions > Covered Employees
HN14 In D'Annunzio, the New Jersey Supreme Court has
noted in the context of a claim under Conscientious
Employee Protection Act, that labels can be illusory as
opposed to illuminating when taken out of context. When
social legislation must be applied in the setting of a
professional person or an individual otherwise providing
specialized services allegedly as an independent
contractor, the trial court should consider three factors:
(1) employer control; (2) the worker's economic
dependence on the work relationship; and (3) the degree
to which there has been a functional integration of the
employer's business with that of the person doing the
work at issue.
Labor & Employment Law > Employment
Relationships > General Overview Workers' Compensation & SSDI > Coverage > Employment
Status > Employees Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors
HN15 In assessing employee status factors, the New
Jersey Supreme Court has noted with approval the hybrid
test established by the Superior Court of New Jersey,
Appellate Division in Pukowsky v. Caruso. In Pukowsky,
which was decided in the context of a Law Against
Discrimination (LAD) claim, the appellate panel identified
twelve factors for courts to consider when determining a
worker's status: (1) the employer's right to control the
means and manner of the worker's performance; (2) the
kind of occupation, supervised or unsupervised; (3) skill;
(4) who furnishes the equipment and workplace; (5) the
length of time in which the individual has worked; (6) the
method of payment; (7) the manner of termination of the
work relationship; (8) whether there is annual leave; (9)
whether the work is an integral part of the business of the
employer; (10) whether the worker accrues retirement
benefits; (11) whether the employer pays social security
taxes; and (12) the intention of the parties. That test is a
hybrid that reflects the common law right-to-control test,
and the economic realities aspect of the nature-of-the-
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Page 5 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
work test.
Labor & Employment Law > Employment
Relationships > Employment Contracts > General Overview Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors Workers' Compensation & SSDI > Coverage > Employment
Status > Employees
HN16 The Workers' Compensation Act, N.J.S.A. §§
34:15-1 to 34:15-142, like the Conscientious Employee
Protection Act and LAD, is remedial social legislation. In
disputes over a worker's status under the Compensation
Act, as in other social legislation, what matters most is
that an individual's status be measured in the light of the
purpose to be served by the applicable legislative
program or social purpose to be served. Thus, the test for
determining those aspects of a non-traditional work
relationship set out in Pukowski applies in the context of
a dispute over the applicability of the Compensation
Statute.
Civil Procedure > ... > Jury Trials > Jury
Instructions > Standard Instructions
HN17 Generally speaking, the language contained in any
model charge results from the considered discussion
amongst experienced jurists and practitioners. However,
a model jury charge applied to a dispute that was not
contemplated by the New Jersey Supreme Court or the
Model Civil Jury Charge Committee when drafting that
charge does not necessarily reflect the approved
language set forth by the Supreme Court. In that
situation, only when the Court has occasion to address
the contents of an adopted charge can the trial court and
practitioners rest assured that the language adopted is
consistent with the Court's instructions.
Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors Workers' Compensation & SSDI > Coverage > Employment
Status > Employees Labor & Employment Law > Employment
Relationships > Independent Contractors
HN18 A worker's economic dependence upon an
employer is a factor to be considered when a worker
performs a function that constitutes a part of the
employer's business. That consideration looks to whether
the decedent's labor was a cog in the wheel of the
employer's operation as a subcontractor of the employer
in as realistic a sense as the work being done by the
employer's regular employees. Further, the
independence of the worker is not to be determined by
looking at the worker or job alone, but by judging how
independent, separate and public his or her business
service is in relation to a particular employer. Thus, that
assessment is considered together with the factor
addressing the integration of the employee's business
with that of the employer's. The worker's economic
dependence on the work relationship, along with the
other two considerations, is assessed under the twelve-
part Pukowski factor test.
Labor & Employment Law > Employment
Relationships > Independent Contractors Workers' Compensation & SSDI > Coverage > Employment
Status > Employees Workers' Compensation & SSDI > Coverage > Employment
Status > Contractors
HN19 The New Jersey Supreme Court addresses the
Superior Court of New Jersey, Appellate Division's
conclusion that the portion of the trial court's instruction
explaining that the lack of payroll deductions and
payment in cash are factors weighing against a finding of
employment was incomplete and misleading. Those
factors have been de-emphasized, as the appellate panel
observed, in the sense that New Jersey courts have
recognized the comparative value of the nature-of-the-
work test over the control test in the context of social
legislation. However, no case has stated that the control
test no longer applies. To the contrary, the Supreme
Court has incorporated without reservation the control
factors, including the method of payment and whether the
employer deducts payroll taxes, into the hybrid analysis
adopted in D'Annunzio.
Syllabus
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed
nor approved by the Supreme Court. Please note that, in
the interest of brevity, portions of any opinion may not
have been summarized).
Estate of Myroslava Kotsovska v. Saul Liebman (A-
89-13) (073861)
Argued March 16, 2015 -- Decided June 11, 2015
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers whether the Workers'
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Page 6 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
Compensation Act (Compensation Act) divests the
Superior Court of jurisdiction to adjudicate the issue of a
worker's employment status once a defendant raises the
exclusive remedy provision of the Compensation Act as
an affirmative defense. The Court also considers
whether, in the circumstances presented here, the jury
charge was so deficient as to require reversal.
In September 2008, after defendant's daughter decided
he needed a live-in assistant, she and defendant met with
decedent. Decedent agreed to move in with defendant
and to work seven days a week in exchange for $100 per
day. Decedent's [***2] duties included preparing three
meals a day for defendant, doing laundry, housekeeping,
and accompanying him on errands. Neither of the parties
prepared any documentation, nor did they discuss the
duration of the arrangement. A month after decedent
began working for defendant, he asked her to accompany
him to a diner. When they arrived, defendant pulled over
and let decedent out of his car. While attempting to park,
defendant accidentally drove onto the sidewalk where
decedent was standing and pinned her against the wall,
severing her leg. Decedent died shortly thereafter from
her injuries. Petitioner, the administrator of decedent's
estate, filed a wrongful death action against defendant.
Defendant conceded his negligence, but asserted that
decedent was his employee and that, therefore, petitioner
was entitled to recovery only under the Compensation
Act.
Defendant moved to dismiss the complaint and to
transfer the matter to the Division of Workers'
Compensation (Division), arguing that the Superior Court
lacked jurisdiction to resolve the dispute. The trial court
denied the motion. After discovery, defendant filed a
motion for summary judgment raising the same
argument.
The court rejected [***3] defendant's argument and
denied the motion and subsequent motion for
reconsideration. Because defendant conceded
negligence, the sole contention at trial was the nature of
decedent's economic relationship with defendant. At trial,
the judge instructed the jury that it would need to decide
by a preponderance of the evidence whether decedent
was an employee or an independent contractor and
explained the factors that it should consider in reaching
that conclusion. The judge also informed the jury that it
should give whatever weight it deemed appropriate to the
facts. The jury returned a verdict in favor of petitioner,
found that decedent was an independent contractor and
awarded decedent's estate a total of $525,000 in
damages.
Defendant appealed and, in a published opinion, the
Appellate Division reversed. Estate of Kotsovska v.
Liebman, 433 N.J. Super. 537, 541, 81 A.3d 715 (App.
Div. 2013). Relying on this Court's decisions in
Kristiansen v. Morgan, 153 N.J. 298, 708 A.2d 1173
(1998), and Wunschel v. City of Jersey City, 96 N.J. 651,
477 A.2d 329 (1984), the panel concluded that the
Division had primary jurisdiction over the dispute
regarding decedent's employment status. The panel
rejected defendant's challenges to the damages award,
reversed the judgment on liability only, and remanded the
matter to the Division for a determination of decedent's
employment status. This Court granted
plaintiff's [***4] petition for certification. 217 N.J. 587, 91
A.3d 23 (2014).
HELD: When there is a genuine dispute regarding a
worker's employment status, and the plaintiff elects to file
a complaint only in the Superior Court Law Division, the
Superior Court has concurrent jurisdiction to resolve the
dispute.
1. Under the Compensation Act, when an employer and
employee have, by express or implied agreement,
accepted the provisions thereof, employers must
compensate employees for work-related injuries arising
out of and in the course of employment without regard to
the negligence of the employer. N.J.S.A. 34:15-7. This
provision is intended to ensure that workers'
compensation provides the exclusive remedy for
employees who sustain work-related injuries. The
Compensation Act defines an employee as a natural
person who performs a service for an employer for
financial consideration. Independent contractors, which
are not addressed in the Compensation Act, are neither
entitled to benefits nor subject to the limitations of the
Compensation Act. Accordingly, parties cannot be
presumed to have accepted the provisions of the
Compensation Act until a determination is made as to
whether the worker was an employee or an independent
contractor. (pp. [***5] 13-18)
2. The Division has exclusive original jurisdiction of all
claims for workers' compensation benefits under this
chapter. N.J.S.A. 34:15-49(a). The Superior Court should
resist the assertion of jurisdiction in cases where it is
evident the matter should be tried elsewhere, but where
there is a genuine question of jurisdiction, this Court
perceives no statutory injunction against the trial of that
issue in either forum. In contrast to the cases relied upon
by defendant and the Appellate Division, here there was
a genuine dispute regarding decedent's employment
status. Petitioner has never suggested that decedent was
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Page 7 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
defendant's employee, and in fact maintained that
decedent was an independent contractor after defendant
raised the exclusive remedy defense under N.J.S.A.
34:15-8. Moreover, petitioner did not file a petition for
workers' compensation with the Division. Thus, there was
no claim pending before the Division over which it could
assert jurisdiction. The Court, therefore, concludes that
the Superior Court had jurisdiction to decide the question
of decedent's employment status. (pp. 18-20)
3. Having determined the Superior Court had jurisdiction,
the Court considers whether the trial court erred [***6] in
declining to transfer plaintiff's claim to the Division under
the doctrine of primary jurisdiction. The decision to invoke
the doctrine of primary jurisdiction rests within the sound
discretion of the trial court and should not be disturbed on
appeal unless the decision was made without a rational
explication, inexplicably departed from established
practices, or rested on an impermissible basis. The trial
court did not abuse its discretion in declining to dismiss
the matter pending a determination by the Division of
decedent's employment status. The forum best suited to
decide employment issues is the Compensation Court,
but it is in no better position to make the threshold
determination of a worker's employment status than the
Superior Court. (pp. 20-22)
4. The Court disagrees with the Appellate Division's
conclusion that Wunschel and Kristiansen compel a
different conclusion. In both Wunschel and Kristiansen,
the plaintiffs filed workers' compensation petitions,
thereby acknowledging that the decedents were
employees rather than independent contractors. Here,
however, petitioner elected to file only a wrongful death
action in the Superior Court, and decedent's employment
status [***7] is vigorously disputed. While the sole issue
in dispute here is an employment issue, that issue falls
well within the knowledge of the Superior Court.
Accordingly, this Court rejects the Appellate Division's
finding that the Division had primary jurisdiction over the
question of decedent's employment status. (pp. 23-25)
5. Further, in the context of the jury charge at issue here,
the Court notes that the first step in assessing the
sufficiency of a contested jury charge requires an
understanding of the legal principles pertinent to the jury's
determination. Our courts have utilized two different but
related tests to distinguish employees from independent
contractors: (1) the control test, which is grounded in the
common law master-servant relationship; and (2) the
relative nature of the work test, which is used in various
situations in which the control test does not emerge as
the dispositive factor. Under the control test, the
factfinder considers the extent of the employer's right to
control the work of the employee. By contrast, the relative
nature of the work test requires a court to examine the
extent of the economic dependence of the worker upon
the business he serves and the [***8] relationship of the
nature of his work to the operation of that business. The
Court has previously held that when social legislation
must be applied in the setting of a professional person or
an individual otherwise providing specialized services
allegedly as an independent contractor, the trial court
should consider: (1) employer control; (2) the worker's
economic dependence on the work relationship; and (3)
the degree to which there has been a functional
integration of the employer's business with that of the
person doing the work at issue. In assessing these
factors, we approved of the hybrid test established by the
Appellate Division in Pukowsky v. Caruso, 312 N.J.
Super. 171, 182-83, 711 A.2d 398 (App. Div. 1998). The
Court hold that the test for determining those aspects of
a non-traditional work relationship set out in Pukowsky
applies in the context of a dispute over the applicability of
the Compensation Statute. (pp. 25-31)
6. Next, the Court considers whether the jury charge
here, which followed Model Jury Charge (Civil) §
5.10I(A), warranted reversal. Here, the model charge was
applied to aid the jury in its determination of decedent's
employment status in the context of social legislation.
Because the charge given here was used in a context
different from the [***9] specific purpose for which the
charge was adopted, the presumption of propriety that
attaches to a trial court's reliance on the model jury
charge does not apply. A comparison between Model
Jury Charge (Civil) § 5.10I(A) and the hybrid approach
shows that the trial court did not instruct the jury as to
each factor. Nevertheless, to the extent such omissions
were error, under the unusual facts of this case, the
charge was not so erroneous as to require reversal. (pp.
31-33)
7. Here, decedent entered into a loosely defined service
contract, which was made terminable at will by either
party. Decedent, who was not a caretaker by trade, had
no social security number, and was not permitted under
the terms of her visa to work in this country, agreed to
provide general services on an as-needed basis, and
retained the discretion to determine the parameters of
that service. The trial judge informed the jury that it is not
important whether or not defendant ever exercised
control, but rather the extent to which the right to control
existed. The jury charge failed to instruct the jury with
regard to the importance of whether decedent's
employment was supervised or unsupervised. However,
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Page 8 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
the record indicates [***10] that, apart from defendant's
daughter occasionally checking in on decedent and her
father, decedent's work was entirely unsupervised. The
jury charge also failed to instruct the jury on the
importance of whether there was an annual leave policy,
whether decedent accrued retirement benefits, and
whether defendant paid social security taxes. However,
each of these factors suggested that decedent was an
independent contractor: no retirement benefits were
contemplated, defendant paid no social security taxes,
and there was no indication of an annual leave policy.
Although the charge could have been more artfully
drafted, it did not misinform the jury as to the controlling
law and was neither ambiguous nor misleading To the
extent that it omitted relevant factors for consideration
under the approach the Court now endorses, those
factors inured to the benefit of petitioner, and therefore
did not result in prejudice to defendant. As such, the
Court concludes that the charge, though flawed, does not
warrant reversal. (pp. 33-38)
The judgment of the Appellate Division is REVERSED.
The verdict of the jury is REINSTATED.
Counsel: Gerald D. Wixted argued the cause for
appellant (Smith, Stratton, Wise, Heher [***11] &
Brennan, attorneys).
Robert F. Cox argued the cause for respondent
(McCreedy & Cox, attorneys).
Judges: Justice SOLOMON delivered the opinion of the
Court. Chief Justice RABNER and Justices LaVECCHIA,
ALBIN, PATTERSON and FERNANDEZ-VINA join in
JUSTICE SOLOMON's opinion. JUDGE CUFF
(temporarily assigned) did not participate.
Opinion by: SOLOMON
Opinion
[*575] [**5] Justice SOLOMON delivered the opinion of
the Court.
This case arises from the tragic death of Myroslava
Kotsovska (decedent), who was fatally injured when
defendant Saul Liebman, for whom decedent worked as
a caretaker, inadvertently struck her with his car.
Petitioner Olena Kotsovska, as administratrix of
decedent's estate, filed a wrongful death action against
Liebman.
Liebman did not dispute that decedent's injuries were the
result of Liebman's negligence. Instead, Liebman argued
that, because decedent was his employee, petitioner
could recover only under the Workers' Compensation Act
(Compensation Act), N.J.S.A. 34:15-1 to -142. If, as
Liebman asserts, decedent was his employee, under the
Compensation Act petitioner is required to file a workers'
compensation petition with the Division of Workers'
Compensation (Division) and may not recover for
decedent's work-related injuries [***12] in tort.
Conversely, if decedent was an independent contractor,
as petitioner asserts, the Compensation Act
does [*576] not apply and petitioner properly filed a claim
against Liebman in the Superior Court.
In this appeal, we are called upon to determine whether
the Compensation Act divests the Superior Court of
jurisdiction to adjudicate the issue of a worker's
employment status once a defendant raises as an
affirmative defense the exclusive remedy provision of the
Compensation Act, N.J.S.A. 34:15-8. Although the
Superior Court determined that it had jurisdiction to
adjudicate the issue of decedent's employment status,
the Appellate Division found that the doctrine of primary
jurisdiction required the trial judge to transfer the matter
to the Division as soon as the workers' compensation
defense was raised. We conclude that when, as here,
there is a genuine dispute regarding the worker's
employment status, and the plaintiff elects to file a
complaint only in the Law Division of the Superior Court,
the Superior Court has concurrent jurisdiction to resolve
the dispute.
We must also determine whether, as the Appellate
Division found, the jury charge given was so deficient that
reversal was required. [***13] This Court in D'Annunzio v.
Prudential Insurance Co. of America, 192 N.J. 110, 122-
24, 927 A.2d 113 (2007), adopted a framework for
assessing a worker's employment status in the context of
social legislation. We now endorse that framework for
use in ascertaining a worker's employment status for
purposes of determining whether the Compensation Act's
exclusive remedy provision applies. Although the jury
charge given here did not fully reflect the considerations
set forth in D'Annunzio, the factors omitted either inured
to the benefit of petitioner or were irrelevant under the
facts of this case. Thus, we cannot conclude that the jury
instruction had the capacity to confuse or mislead the
jury.
Consequently, we reverse the judgment of the Appellate
Division and reinstate the jury's verdict.
I.
The undisputed facts of this case are briefly summarized
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Page 9 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
as follows. In September 2008, Liebman's daughter
Robin Ross [*577] decided that Liebman, then eighty-
nine years old and living alone, was in need of a live-in
assistant. Ross inquired among her friends for a suitable
candidate, and was introduced to decedent through a
mutual acquaintance.
Decedent met with Ross and Liebman. Because
decedent was not proficient in [**6] English, her son-in-
law Oleh Baran accompanied decedent and served as a
translator. [***14] Decedent agreed to move in with
Liebman and work seven days a week in exchange for
$100 per day, to be paid in cash. The parties agreed to
pay decedent in cash because decedent did not have a
social security number or a bank account, and therefore
could not cash a check. Decedent's duties included
preparing three meals a day for Liebman, doing
Liebman's laundry, performing "light housekeeping"
duties "as needed," accompanying Liebman on errands,
and assisting Liebman generally in "getting around."
No documentation regarding the work agreement was
prepared, exchanged, or requested. The parties did not
discuss the duration of the arrangement; nor did they
discuss decedent's immigration status or whether she
was authorized to work in the United States.1 The parties
agreed that decedent would have some vacation time
around the holidays, but did not discuss how long the
vacation time would be or if the vacation time would be
paid. Ross asked if decedent had health insurance, to
which Baran replied that he and Olena would take care
of decedent's medical bills "personally" if the need arose.
Decedent started work immediately. Ross testified that
she "checked in" on decedent "occasionally," and that it
was her understanding that decedent had "a lot of
independence" in how she chose to perform her duties
and when to take time off. According to Ross, either party
was free to terminate the arrangement at any time.
[*578] Little more than one month after decedent began
working for Liebman, Liebman asked decedent to
accompany him to a diner because he needed help with
errands. As they arrived at the diner, Liebman pulled over
and let decedent out of his car. While attempting to park,
Liebman accidentally drove over the curb onto the
sidewalk where decedent was standing and pinned
decedent against the wall of the diner, severing her leg
below the knee. Decedent died shortly thereafter from her
injuries.
1 According to Olena Kotsovska, decedent's visa did not
authorize her to work in the United States.
Petitioner filed a wrongful death action against Liebman,
alleging that decedent's death was the result of
Liebman's negligence. Liebman conceded negligence,
but asserted that decedent was his employee and that,
therefore, petitioner was entitled to recovery only under
the Compensation [***16] Act.
Liebman filed a motion to dismiss the complaint and to
transfer the matter to the Division, arguing that the
Superior Court lacked jurisdiction to resolve employment
status disputes for purposes of determining whether the
Compensation Act's exclusive remedy provision,
N.J.S.A. 34:15-8, applies. The trial court denied the
motion. After discovery concluded, Liebman filed a
motion for summary judgment raising the same
argument. Noting that plaintiff had not filed a workers'
compensation petition and that therefore "there's nothing
pending there for [the Division] to make a decision," the
court rejected defendant's argument and denied the
motion and subsequent motion for reconsideration.
Because Liebman conceded negligence, the sole
contention at trial was the nature of decedent's economic
relationship with Liebman.
After five days of trial, the judge instructed the jury that it
would need to decide by a preponderance of the
evidence whether decedent was an employee or an
independent contractor. The judge
defined [**7] "employee" as "a person engaged to
perform services for another, the employer, and who is
subject to the employer's control or right to control the
physical conduct required to perform [***17] such
services." The judge then defined "independent
contractor" as
[*579] a person who in carrying on an independent
business contracts, independent from the employer,
. . . to do a piece of work according to h[er] own
methods without being subject to the control of the
employer as to the means by which the result is to
be accomplished but only as to the result of the work.
Next, the judge explained that "there are a number of
factors" to consider in determining whether decedent was
an employee or an independent contractor:
The first factor and probably the most important
factor is the extent of control the person for whom
the services are performed has the right to . . .
exercise over the details of the services performed.
Olena [***15] testified that she did not inform Ross or Liebman
of this fact because they "didn't ask those questions."
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Page 10 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
If the worker is only subject to the general control and
direction of the employer, then the worker is more
likely to be an independent contractor.
It is not important whether or not [Liebman] in this
case actually ever exercised control but rather the
extent to which the right to control existed. The more
the control, the more likely an employer/employee
relationship exists. The less . . . control, the less
likely an employer/employee relationship exists.
Another factor you can [***18] consider is whether
the parties believed they're [sic] in a relationship of
employer/employee and number three, the extent of
the skill required in the performance of the services.
Number four, the length of time anticipated for the
performance of the services. Number five, hiring,
payment of regularly weekly sum, provision of tools,
supplies of a workplace and being terminable at will
are factors that weigh in favor of the
employer/employee relationship. Lack of payroll
deductions, payment in cash are factors that weigh
against the employer/employee relationship. Such
other factors as may be reasonably considered [to]
determine whether [Liebman] controlled or had the
right to control [decedent] in the performance of her
services provided.
. . . .
The conduct of the parties after they entered into the
relationship may be significant evidence about what
they believed the relationship to be.
The judge explained that the jury should consider the
"quality of the factors" rather than the "quantity of factors"
in considering whether decedent was an employee or an
independent contractor, and that it was up to the jury to
"give whatever weight you deem appropriate to the fact[s]
as you find to exist [***19] to reach your decision[.]"
The jury returned a verdict in favor of petitioner, finding
that decedent was an independent contractor and
awarding decedent's estate a total of $525,000 in
damages. The trial court denied Liebman's motion for a
new trial, and Liebman filed a timely notice of appeal.
[*580] The Appellate Division reversed in a published
opinion. Estate of Kotsovska v. Liebman, 433 N.J. Super.
537, 541, 81 A.3d 715 (App.Div.2013). Relying on this
Court's decisions in Kristiansen v. Morgan, 153 N.J. 298,
708 A.2d 1173 (1998), and Wunschel v. City of Jersey
City, 96 N.J. 651, 477 A.2d 329 (1984), the panel
concluded that the Division had primary jurisdiction over
the dispute regarding decedent's employment status "'by
virtue of its statutory status, administrative competence
and regulatory expertise.'" Liebman, supra, 433 N.J.
Super. at 543-44, 81 A.3d 715 (quoting Wunschel, supra,
96 N.J. at 664, 477 A.2d 329). Although the [**8] panel
determined that the matter "should have been transferred
to the Division for a determination of decedent's
employment status," it held that this error alone did not
warrant reversal because the Superior Court has
concurrent jurisdiction to decide employment issues. Id.
at 543, 547, 81 A.3d 715.
Nevertheless, the panel reversed, finding the jury charge
addressing the distinctions between employees and
independent contractors "was clearly capable of
producing an unjust result." Id. at 547, 549, 81 A.3d 715.
Observing that New Jersey courts have increasingly
relied upon the "relative nature of the work" test in
compensation [***20] cases, the panel determined that
the jury charge should have accounted for the factors
relevant to that test. Id. at 547-48, 81 A.3d 715.
Specifically, the panel determined that decedent's
economic dependence upon Liebman was "highly
relevant here as decedent would appear to have been
entirely economically dependent on Liebman." Id. at 548,
81 A.3d 715. The panel also stated that including in the
charge the method of payment and lack of payroll
deductions as factors weighing against a finding of an
employee-employer relationship, without more
explanation, "was incomplete and misleading" because
of the reduced importance accorded to those factors in
previous cases. Id. at 548-59, 81 A.3d 715.
The panel rejected Liebman's challenges to the damages
award and "reverse[d] the judgment on liability only,"
remanding the [*581] matter to the Division for a
determination of decedent's employment status. Id. at
551, 81 A.3d 715.
We granted plaintiff's petition for certification. 217 N.J.
587, 91 A.3d 23 (2014).
II.
A.
Addressing the Appellate Division's determination that
the matter should have been transferred to the Division,
petitioner argues that the panel's decision runs contrary
to established litigation practice and finds no support in
either the language of the Compensation Act or this
State's jurisprudence. Citing one [***21] published
Appellate Division case and numerous unpublished
Appellate Division cases, petitioner asserts that the
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Page 11 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
Superior Court "has long been understood" to have
jurisdiction over the issue of a worker's employment
status for purposes of determining whether plaintiff's
exclusive remedy is under the Compensation Act.
Petitioner acknowledges this Court's holdings in
Wunschel and Kristiansen that the Division has expertise
in employment matters and primary jurisdiction over
compensability disputes under the Compensation Act.
However, petitioner argues that Wunschel and
Kristiansen are inapposite because, in those cases, it
was undisputed that the workers were employees. By
contrast, here petitioner did not file a workers'
compensation petition and has maintained that decedent
was an independent contractor rather than an employee.
Petitioner acknowledges that the Compensation Act
confers exclusive original jurisdiction upon the Division
over claims arising from an employee-employer
relationship, N.J.S.A. 34:15-49(a). However, petitioner
argues, the statute does not confer jurisdiction upon the
Division to determine the threshold question of a worker's
employment status. Rather, the Compensation
Act [***22] applies only to those who have accepted the
statute's provisions by entering into an employee-
employer relationship. See N.J.S.A. 34:15-7, [*582] -8.
Thus, petitioner asserts, the appellate panel's decision
improperly expanded the Division's limited jurisdiction
under the Compensation Act to include the resolution of
disputes [**9] regarding a worker's consent to the
provisions of the statute.
Addressing the appellate panel's finding that the jury
charge constituted plain error, petitioner notes that the
trial court's instruction followed the Model Jury Charge on
Agency, Model Jury Charge (Civil) § 5.10I(A),
"Employer/Employee" (Revised 2011). According to
petitioner, this jury charge substantially incorporated
factors relevant to the nature of the work. Nevertheless,
petitioner acknowledges that clarification of the charge
may be warranted.
B.
Regarding the trial court's denial of his motion to transfer
petitioner's claim to the Division, Liebman relies on
N.J.S.A. 34:15-9, which states that every employment
contract "shall be presumed to have been made with
reference to the provisions" of the Act. Based on this
2 The Appellate Division did not consider Liebman's additional
arguments here that the charge was erroneous because it
improperly [***24] applied the term "employer" to both the
provision, Liebman argues that, because decedent
entered into a verbal employment contract with Liebman
and failed [***23] to exempt herself from the
Compensation Act, the Division had primary jurisdiction
to adjudicate the matter.
Liebman contends that the appellate panel's decision
follows and clarifies our decisions in Wunschel and
Kristiansen, which he asserts were premised on the
notion that a controversy should be decided in the forum
best suited to adjudicate the matter. Liebman posits that
the threshold issue of a plaintiff's employment status is
an employment matter, and that therefore under
Wunschel and Kristiansen the issue should have been
decided by the Division, the agency with the regulatory
expertise necessary to address this complex employment
question.
Regarding the jury charge, Liebman contends that Model
Jury Charge (Civil) 5.10(I) was designed to instruct the
jury on the issue of respondeat superior rather than to
address disputes over a worker's employment status in
the context of the Compensation [*583] Act. Liebman
also asserts that the Appellate Division properly
determined that the jury charge given here suffered from
a number of deficiencies that required reversal.2
III.
Although not the basis for the Appellate Division's
disposition, we begin by addressing the panel's
conclusion that the Division had primary jurisdiction to
decide the threshold issue of decedent's employment
status. In determining whether the Division has such
jurisdiction, "we must be faithful to the legislative goals of
the workers' compensation system." Millison v. E.I. du
Pont de Nemours & Co., 101 N.J. 161, 173, 501 A.2d 505
(1985). We therefore briefly review the Compensation Act
and interpretive case law to provide the context
necessary for our analysis.
A.
HN1 The legislature enacted the Compensation Act in
1911, L. 1911, c. 95, to address the variety of difficulties
workers encountered in attempting to recover in tort
against their employers for work-related injuries. See
Millison, supra, 101 N.J. at 174, 501 A.2d 505 (citing W.
Prosser & W. Keeton, The Law of Torts, § 80 at 569 (5th
employee and independent contractor contexts and never
advised the jury on how independent contractors were paid. We
find no merit to either argument.
101
Page 12 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
ed. 1984)).3 The legislature sought to
accomplish [**10] this by "establish[ing] a no fault system
of compensation for workers who [*584] are injured or
contract a disease in the course of employment."
Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 31,
890 A.2d 933 (2006) (quoting Brock v. Pub. Serv. Elec. &
Gas Co., 325 N.J. Super. 582, 588, 740 A.2d 167
(App.Div.1999), [***25] certif. denied, 163 N.J. 77, 747
A.2d 285 (2000)) (internal quotation marks omitted).
Thus, the Compensation Act provides employees who
have sustained work-related injuries medical treatment
and limited compensation "without regard to the
negligence of the employer." N.J.S.A. 34:15-7; see also
Stancil v. Ace USA, 211 N.J. 276, 296, 48 A.3d 991
(2012) (Albin, J., dissenting). "In essence, the
[Compensation] Act is a social compact, 'an historic
trade-off whereby employees relinquish their right to
pursue common-law remedies in exchange for prompt
and automatic entitlement to benefits for work-related
injuries.'" Stancil, supra, 211 N.J. at 296, 48 A.3d 991
(Albin, J., dissenting) (quoting Charles Beseler Co. v.
O'Gorman & Young, Inc., 188 N.J. 542, 546, 911 A.2d 47
(2006)); see also Tlumac v. High Bridge Stone, 187 N.J.
567, 573, 902 A.2d 222 (2006) (noting "the remedial
purpose of the Workers' Compensation Act" is "to make
benefits readily and broadly available to injured workers
through a non-complicated process").
"[W]e have long recognized that this system for the
compensation of injured workers is 'remedial social
legislation and should be given liberal construction in
order that its beneficent purposes may be
accomplished.'" Cruz v. Cent. Jersey Landscaping, Inc.,
195 N.J. 33, 42, 947 A.2d 1228 (2008) (quoting Torres v.
Trenton Times Newspaper, 64 N.J. 458, 461, 317 A.2d
361 (1974)). Thus, the statute is broadly construed in
favor of coverage.
B.
Mindful of the legislative purpose and goals of the
Compensation [***26] Act, we turn to the language of the
3 Prior to enactment of the Compensation Act, employer liability
was greatly minimized by "the 'unholy trinity' of employer
defenses—contributory negligence, assumption of risk, and the
fellow servant rule—which served to protect the employer from
legal liability even though he had failed in his duty as master to
protect his servants." Ibid. Further, as Professor Larson
observed, an injured worker faced significant difficulties in
getting "the usual witnesses of the accident, usually
coemployees" to testify against their employers. 3 Arthur Larson
statute. HN2 Under the Compensation Act, "[w]hen
employer and employee shall by agreement, either
express or implied . . . accept the provisions of" the
Compensation Act, employers shall compensate
employees for work-related injuries "arising out of and in
the course of employment . . . [*585] without regard to
the negligence of the employer[.]" N.J.S.A. 34:15-7
(emphasis added). Absent an express disclaimer to the
contrary, all parties to every employment contract made
after July 1911 are "presumed [to] have accepted the
provisions of [the Compensation Act] and have agreed to
be bound thereby[.]" N.J.S.A. 34:15-9.
Once the employment contract is created and the
employee-employer relationship is established,
[s]uch agreement shall be a surrender by the parties
thereto of their rights to any other method, form or
amount of compensation or determination thereof
than as provided in this article and an acceptance of
all the provisions of this article, and shall bind the
employee and for compensation for the employee's
death shall bind the employee's personal
representatives.
[N.J.S.A. 34:15-8.]
[**11] HN3 This provision is intended to ensure that
workers' compensation provides the exclusive remedy for
employees [***27] who sustain work-related injuries.
Wunschel, supra, 96 N.J. at 659, 477 A.2d 329. As a
result, "although 'the employer assumes an absolute
liability[,] [h]e gains immunity from common-law suit,
even though he be negligent, and is left with a limited and
determined liability in all cases of work-connected injury.'"
Whitfield v. Bonanno Real Estate Grp., 419 N.J. Super.
547, 553, 17 A.3d 855 (App.Div.2011) (alterations in
original) (quoting Dudley v. Victor Lynn Lines, Inc., 32
N.J. 479, 489, 161 A.2d 479 (1960)); see also Toland v.
Atl. Gahagan Joint Venture Dredge, No. 1, 57 N.J. 205,
207, 271 A.2d 2 (1970) ("The elective provisions of
[N.J.S.A. 34:15-8] were only intended to deny employees
their traditional common law tort remedies.").4
& Lex K. Larson, Larson's Workers' Compensation Law § 2.03
(2006). 4 The New Jersey workers' compensation scheme also allows
either the employer or the employee to elect to "reject the
ordinary system of compensatory non-fault liability," known as
"Article II coverage," in favor of "Article I coverage" under
N.J.S.A. 34:15-1 to -7. Naseef v. Cord, Inc., 48 N.J. 317, 322,
225 A.2d 343 (1966). Article I coverage provides that the
employee may recover against the employer under common-
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Page 13 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
[*586] HN4 "[A]scrib[ing] to the statutory words their
ordinary meaning and significance," DiProspero v. Penn,
183 N.J. 477, 492, 874 A.2d 1039 (2005) (citations
omitted), it is clear that the benefits and the limitations of
the Compensation Act apply only to
"employees" [***28] who, by virtue of their employment
agreements, have accepted its provisions. The
Compensation Act defines the term "employee" as
"synonymous with servant," to "include[ ] all natural
persons, including officers of corporations, who perform
a service for an employer for financial consideration[.]"
N.J.S.A. 34:15-36.5 By contrast, independent
contractors, which are not addressed in the
Compensation Act, are neither entitled to benefits nor
subject to the limitations of the Compensation Act.
Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464,
471, 769 A.2d 1095 (App.Div.), certif. denied, 169 N.J.
611, 782 A.2d 429 (2001). As our courts have explained,
an "independent contractor" is "'one who, carrying on an
independent business, contracts to do a piece of work
according to his own methods, and without being subject
to the control of his employer as to the means by which
the result is accomplished, but only as to the result of
work.'" Ibid. (quoting Lesniewski v. W.B. Furze Corp., 308
N.J. Super. 270, 280, 705 A.2d 1243 (App.Div.1998)).
HN5 Accordingly, parties cannot be presumed
to [***29] have accepted the provisions of the
Compensation Act, including the exclusive remedy
provision, until a threshold determination is made as to
whether the worker was an employee or an independent
contractor. With these concepts in mind, we now turn to
the question of whether the Superior Court has
jurisdiction to make this threshold determination.
[*587] IV.
A.
As Liebman notes, the Division has "the exclusive original
jurisdiction of all [**12] claims for workers' compensation
benefits under this chapter." N.J.S.A. 34:15-49(a). HN6
Certainly, the Superior Court "should be steadfast in [its]
readiness to resist the assertion of jurisdiction in cases
where it is evident the matter should be tried elsewhere."
Singer Shop-Rite, Inc. v. Rangel, 174 N.J. Super. 442,
law negligence, and that "the employee's claim may not be
defeated by the defenses of ordinary contributory negligence
(see N.J.S.A. 34:15-1), assumption of risk (see N.J.S.A. 34:15-
2; McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d
238 (1963)), or negligence of a fellow-employee (see N.J.S.A.
34:15-2)." Ibid.
447, 416 A.2d 965 (App.Div.), certif. denied, 85 N.J. 148,
425 A.2d 299 (1980). On the other hand, "[w]here a
genuine question of jurisdiction, exclusive, primary or
concurrent, is involved we perceive no statutory
injunction against the trial of that issue in either forum[.]"
Id. at 446, 416 A.2d 965. Indeed, as one commentator
has observed, "[d]espite the exclusivity of the workers'
compensation remedy, the Superior Court has
jurisdiction to determine the existence of the employment
relationship and such other employment issues as are
raised by way of defense to the employee's tort action."
Pressler & Verniero, [***30] Current N.J. Court Rules,
comment 42.1 on R. 4:5-4 at 1414 (2014).
In contrast to the cases relied upon by Liebman and the
Appellate Division, here there was a genuine dispute
regarding decedent's employment status. Petitioner has
never suggested that decedent was Liebman's
employee, and in fact maintained that decedent was an
independent contractor after Liebman raised the
exclusive remedy defense under N.J.S.A. 34:15-8.
Moreover, petitioner did not file a petition for workers'
compensation with the Division. Thus, as the trial court
noted, there was no claim pending before the Division
over which it could assert jurisdiction. Under these
circumstances, we conclude that the Superior Court had
jurisdiction to decide the question of decedent's
employment status.
B.
Having determined the Superior Court had jurisdiction,
we next consider whether, as the Appellate Division
found, the [*588] trial court erred in declining to transfer
plaintiff's claim to the Division under the doctrine of
primary jurisdiction. HN7 "The doctrine of primary
jurisdiction is applicable when a case is properly filed in
the Superior Court but the court declines original
jurisdiction, referring specific issues to the appropriate
administrative [***31] body." Magic Petroleum Corp. v.
Exxon Mobil Corp., 218 N.J. 390, 405, 95 A.3d 175
(2014). Thus, "when enforcement of a claim requires
resolution of an issue within the special competence of
an administrative agency, a court may defer to a decision
of that agency." Campione v. Adamar, Inc., 155 N.J. 245,
263-64, 714 A.2d 299 (1998).
5 This provision contains exemptions for "(1) employees eligible
under the federal 'Longshore and Harbor Workers'
Compensation Act,' for benefits payable with respect to
accidental death or injury, or occupational disease or infection;
and (2) casual employments." Ibid. (citations omitted). Neither
exemption applies here.
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Page 14 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
"The decision to invoke the doctrine of primary jurisdiction
rests within the sound discretion of the [trial] court."
Nordstrom v. Lyon, 424 N.J. Super. 80, 99, 35 A.3d 710
(App.Div.2012). Accordingly, the trial court's decision
here should not be disturbed on appeal unless the
decision was "made without a rational explication,
inexplicably departed from established practices, or
rested on an impermissible basis." Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002)
(citation and internal quotation marks omitted).
"Although no formula exists to evaluate the applicability
of primary jurisdiction," we recently stated that "our courts
have been guided by a four-part test," in which the
following factors are considered:
1) whether the matter at issue is within the
conventional experience of judges; 2) whether the
matter is peculiarly within the agency's discretion, or
requires agency expertise; 3) whether inconsistent
rulings might pose a danger of disrupting [**13] the
statutory scheme; and 4) whether prior application
has been made to the agency.
[Magic Petroleum Corp., supra, 218 N.J. at 407, 95
A.3d 175 (quoting Boldt v. Correspondence Mgmt.,
Inc., 320 N.J. Super. 74, 85, 726 A.2d 975,
(App.Div.1999).]
Applying these factors to the facts before us, we conclude
that the trial [***32] court did not abuse its discretion in
declining to dismiss the matter pending a determination
by the Division of decedent's employment status.
First, HN8 the question of a worker's employment status
is a matter that is often determined by trial judges and
juries. See, e.g., [*589] Re/Max of N.J. v. Wausau Ins.
Cos., 162 N.J. 282, 286, 744 A.2d 154 (2000) (affirming
Chancery Division's determination of real estate agents
as "employees" under Compensation Act); see also
Hargrove v. Sleepy's, LLC, 220 N.J. 289, 295, 106 A.3d
449 (2015) (addressing test for a plaintiff's employment
status for purposes of Wage Payment Law and Wage
and Hour Law); D'Annunzio, supra, 192 N.J. at 120-25,
927 A.2d 113 (reaffirming criteria for trial court's
determination of plaintiff's employment status in claims
arising under Conscientious Employee Protection Act);
Pukowsky v. Caruso, 312 N.J. Super. 171, 180-83, 711
A.2d 398 (App.Div.1998) (addressing trial court's
determination of a plaintiff's employment status in the
context of the Law Against Discrimination). Indeed, as
Professor Larson has observed, in addition to workers'
compensation, "[t]he definition of the term 'employee' for
purposes of vicarious liability, employers' liability, . . .
labor legislation, unemployment compensation, social
security and miscellaneous enactments applicable to
employees, has probably produced more reported cases
than any definition of status in the modern history of law."
3 Larson, supra, § 60.01.
Second, while we [***33] acknowledge that "[t]he forum
best suited to decide employment issues is the
Compensation Court," Wunschel, supra, 90 N.J. at 664,
477 A.2d 329, the Compensation Court is in no better
position to make the threshold determination of a
worker's employment status than the Superior Court. As
discussed above, the Superior Court is often tasked with
making this determination in a variety of contexts. Thus,
this determination is not "peculiarly within the agency's
discretion," or one which "requires agency expertise,"
Boldt, supra, 320 N.J. Super. at 85, 726 A.2d 975.
Third, there is no risk of inconsistent rulings because
petitioner declined to file a petition with the Division.
Consequently, we find the doctrine of primary jurisdiction
does not apply to the facts of this case.
[*590] C.
Turning to the Appellate Division's reliance on our
precedent, we disagree that Wunschel and Kristiansen
compel a different conclusion. In Wunschel, supra, the
decedent-employee, a police officer, arranged to have
Sachs, his partner in the Jersey City Police Department,
pick him up for work after completing a shift at a second
job. 96 N.J. at 655, 477 A.2d 329. When Sachs arrived to
pick up Wunschel, Sachs accidentally shot and killed
Wunschel. Id. at 656, 477 A.2d 329. Wunschel's widow
filed a workers' compensation petition with the Division
naming both employers, [***34] and a wrongful death
complaint in the Superior Court naming both employers
and Sachs. Ibid.
The Division determined that Wunschel's death occurred
during the course of his employment with the second
employer, while the jury determined that Wunschel's
death arose during the course of his employment with the
police department. Id. [**14] at 657, 477 A.2d 329. Thus,
we were presented in that case with a situation in which
the Division and the Superior Court reached opposite
conclusions. Id. at 657-58, 477 A.2d 329. Noting that
"[a]voiding inconsistent results and duplication of
litigation is an aim of our law," we held that "[t]he forum
best suited to decide employment issues is the
Compensation Court." Id. at 664, 477 A.2d 329.
In Kristiansen, supra, a bridge worker was struck and
killed by a car after his shift had ended while on his way
104
Page 15 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
to an off-site parking lot. 153 N.J. at 302-04, 708 A.2d
1173. As in Wunschel, the decedent's widow filed a
workers' compensation petition with the Division and a
wrongful death action in the Superior Court, and the key
issue was whether the employee-decedent was injured
during the course of his employment. Id. at 304, 306-07,
708 A.2d 1173. In addressing the employer's argument
that the Division had primary jurisdiction to decide
whether the decedent's injuries were compensable, we
noted that, "[u]nlike the [***35] Wunschel case in which a
fellow servant was sued in the Superior Court, here, no
issue has been raised that the Division cannot decide in
a manner that is binding on all the interested parties." Id.
at 311, 708 A.2d [*591] 1173. Because, unlike in
Wunschel, the Division had jurisdiction over the parties
necessary to determine compensability, we determined
that "the Division and not the Superior Court should have
decided the compensability issues." Id. at 311, 313, 708
A.2d 1173.
The distinctions between these cases and the case
presently before us are significant. In both Wunschel and
Kristiansen, the plaintiffs filed workers' compensation
petitions, thereby acknowledging that the decedents
were employees rather than independent contractors.
Here, by contrast, petitioner elected to file only a wrongful
death action in the Superior Court, and decedent's
employment status is vigorously disputed. Unlike in
Wunschel and Kristiansen, where the only issue raised
was compensability, no compensability arguments have
been raised here. While the sole issue in dispute here—
decedent's employment status—is an employment issue,
that issue falls well within the ken of the Superior Court.
Thus, we cannot agree that the trial court was required to
abstain [***36] from resolving a question that is so often
before it.
Accordingly, we reject the Appellate Division's finding that
the Division had primary jurisdiction over the question of
decedent's employment status.
V.
A.
We turn next to the Appellate Division's conclusion with
respect to the jury charge. Preliminarily, we note that HN9
"[a] jury is entitled to an explanation of the applicable
legal principles and how they are to be applied in light of
6 We note our recent approval of the "ABC" test, which is
"derived from the New Jersey Unemployment Compensation
Act," for use in determining whether a worker is an employee or
the parties' contentions and the evidence produced in the
case." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18, 800
A.2d 826 (2002) (citations and internal quotation marks
omitted). Thus, a proper "jury charge must correctly state
the applicable law, outline the jury's function and be clear
in how the jury should apply the legal principles charged
to the facts of the case at hand." Ibid. To accomplish
these goals, [*592] the jury charge should be tailored to
the specific facts of the case. Reynolds v. Gonzalez, 172
N.J. 266, 289, 798 A.2d 67 (2002).
HN10 When a party objects to the jury charge at trial, the
"reviewing court should reverse on the basis of that
challenged error unless the error is harmless." Toto v.
Ensuar, 196 N.J. 134, 144, 952 A.2d 463 (2008) (citing
R. 2:10-2). An [**15] error is harmful only where that
error is "clearly capable of producing an unjust result." R.
2:10-2. When presented with a contested jury charge, "a
court must examine the charge [***37] as a whole, rather
than focus on individual errors in isolation." Ibid.
B.
The first step in assessing the sufficiency of a contested
jury charge, then, requires an understanding of the legal
principles pertinent to the jury's determination. HN11 Our
courts have utilized two different but related tests to
distinguish employees from independent contractors: (1)
the "control test," which "is grounded in the common law
master-servant relationship"; and (2) the "relative nature
of the work test," which is used in "'various situations in
which the control test does not emerge as the dispositive
factor.'" Lowe v. Zarghami, 158 N.J. 606, 615-16, 731
A.2d 14 (1999) (quoting Marcus v. E. Agric. Ass'n, 58 N.J.
Super. 584, 597, 157 A.2d 3 (App.Div.1959) (Conford,
J.A.D., dissenting), rev'd on dissent, 32 N.J. 460, 161
A.2d 247 (1960)).6
Under the control test, the factfinder considers the extent
of the employer's right to control the work of the
employee. Ibid. (citing N.J. Prop.-Liability Ins. Guar. Ass'n
v. State, 195 N.J. Super. 4, 8, 477 A.2d 826 (App.Div.),
certif. denied, 99 N.J. 188, 491 A.2d 691 (1984)). This
test takes into consideration a [*593] variety of
employment [***38] conditions, including "the degree of
control exercised by the employer over the means of
completing the work," "the source of the worker's
compensation," "the source of the worker's equipment
an independent contractor for purposes of the Wage Payment
Law and the Wage and Hour Law. Hargrove, supra, 220 N.J. at
295, 106 A.3d 449. For the reasons that follow, that test does
not apply here.
105
Page 16 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
and resources," "the employer's termination rights," id. at
616, 731 A.2d 14, as well as the "right of termination" and
the "method of payment," Aetna Ins. Co. v. Trans Am.
Trucking Serv., Inc., 261 N.J. Super. 316, 326-27, 618
A.2d 906 (App. Div.1993). HN12 "The greater the degree
of control exercised by the employer, the more likely the
worker will be considered an employee." Lowe, supra,
158 N.J. at 616, 731 A.2d 14.
By contrast, the relative nature of the work test "requires
a court to examine 'the extent of the economic
dependence of the worker upon the business he serves
and the relationship of the nature of his work to the
operation of that business.'" Lowe, supra, 158 N.J. at 616,
731 A.2d 14 (quoting Marcus, supra, 58 N.J. Super. at
603, 157 A.2d 3 (Conford, J.A.D., dissenting)). Under this
test, the employer's control is "a single, but not
dispositive, factor." Wajner v. Newark Beth Israel Med.
Ctr., 298 N.J. Super. 116, 120, 689 A.2d 143
(App.Div.1997); accord Lowe, supra, 158 N.J. at 617, 731
A.2d 14. Instead, it "focuses on whether there is
'substantial economic dependence' upon the 'employer'
by the 'employee' and whether there has been a
'functional integration of their respective operations.'"
Aetna Ins. Co., supra, 261 N.J. Super. at 327, 618 A.2d
906 (quoting Smith v. E.T.L. Enters., 155 N.J. Super. 343,
352, 382 A.2d 939 (App.Div.1978)). As Professor Larson
notes, "the control test is in practice giving way to the
relative-nature-of-the-work test" in part to address
employers' efforts to circumvent [***39] the
inconveniences created by the Compensation Act by, for
example, "subcontracting portions of the
employer's [**16] production and distribution process." 3
Larson, supra, § 62.01.
HN13 "Our courts have long recognized that, in certain
settings, exclusive reliance on a traditional right-to-
control test to identify who is an 'employee' does not
necessarily result in the identification [*594] of all those
workers that social legislation seeks to reach."
D'Annunzio, supra, 192 N.J. at 121, 927 A.2d 113. For
example,
where the type of work requires little supervision
over details for its proper prosecution and the person
performing it is so experienced that instructions
concerning such details would be superfluous, . . .
the factor of control becomes inconclusive, and
reorientation toward a correct legal conclusion must
be sought by resort to more realistically significant
criteria.
[Id. at 122, 927 A.2d 113 (quoting Marcus, supra, 58
N.J. Super. at 597, 157 A.2d 3 (Conford, J.A.D.,
dissenting).]
HN14 In D'Annunzio, we noted in the context of a claim
under Conscientious Employee Protection Act (CEPA),
that "labels can be illusory as opposed to illuminating"
when taken out of context. Ibid. We held that, when
"social legislation must be applied in the setting of a
professional person or an individual otherwise providing
specialized services allegedly [***40] as an independent
contractor," the trial court should consider three factors:
"(1) employer control; (2) the worker's economic
dependence on the work relationship; and (3) the degree
to which there has been a functional integration of the
employer's business with that of the person doing the
work at issue." Ibid.
HN15 In assessing these factors, we noted with approval
the "hybrid" test established by the Appellate Division in
Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83, 711
A.2d 398 (App.Div.1998). D'Annunzio, supra, 192 N.J. at
123, 927 A.2d 113. In Pukowsky, which was decided in
the context of a Law Against Discrimination (LAD) claim,
the appellate panel identified twelve factors for courts to
consider when determining a worker's status:
(1) the employer's right to control the means and
manner of the worker's performance; (2) the kind of
occupation—supervised or unsupervised; (3) skill;
(4) who furnishes the equipment and workplace; (5)
the length of time in which the individual has worked;
(6) the method of payment; (7) the manner of
termination of the work relationship; (8) whether
there is annual leave; (9) whether the work is an
integral part of the business of the "employer"; (10)
whether the worker accrues retirement benefits; (11)
whether the "employer" pays social security taxes;
and (12) the [***41] intention of the parties.
[Pukowski, supra, 312 N.J. Super. at 182-83, 711
A.2d 398 (quoting Franz v. Raymond Eisenhardt &
Sons, Inc., 732 F. Supp. 521, 528 (D.N.J.1990)).]
"This test is a hybrid that reflects the common law right-
to-control test," D'Annunzio, supra, 192 N.J. at 123, 927
A.2d 113 (citing [*595] Restatement (Second) of Agency,
§ 220 (1957)), and the "economic realities" aspect of the
nature-of-the-work test, ibid.
The Compensation Act, HN16 like CEPA and LAD, is
"remedial social legislation." Cruz, supra, 195 N.J. at 42,
947 A.2d 1228 (citation and internal quotation marks
omitted). In disputes over a worker's status under the
Compensation Act, as in other social legislation, "what
106
Page 17 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
matters most is that an individual's status be measured in
the light of the purpose to be served by the applicable
legislative program or social purpose to be served."
D'Annunzio, supra, 192 N.J. at 122 n.7, 927 A.2d 113.
Thus, we hold that "the test [**17] for determining those
aspects of a non-traditional work relationship . . . set out
in Pukowski" applies in the context of a dispute over the
applicability of the Compensation Statute. See id. at 122,
927 A.2d 113.
We note that this hybrid approach, which we now
endorse for purposes of determining whether the
Compensation Act applies, is not reflected in the current
Model Jury Charge on Agency. To that end, we refer this
issue to the Supreme Court Committee on Model Civil
Jury Charges for the development and adoption of a
standard charge concerning the employee-
independent [***42] contractor distinction in the context
of social legislation, to incorporate the hybrid test set forth
above.
C.
With these principles in mind, we must consider whether
the jury charge given here warranted reversal. Initially,
we note that the jury charge given here followed Model
Jury Charge (Civil) § 5.10I(A). HN17 "Generally
speaking, the language contained in any model charge
results from the considered discussion amongst
experienced jurists and practitioners." Flood v. Aluri-
Vallabhaneni, 431 N.J. Super. 365, 383-84, 70 A.3d
665 (App.Div.) (quoting State v. R.B., 183 N.J. 308, 325,
873 A.2d 511 (2005)), certif. denied, 216 N.J. 14, 76 A.3d
533 (2013).
However, a model jury charge applied to a dispute that
was not contemplated by this Court or the Model Civil
Jury Charge [*596] Committee when drafting that charge
"does not necessarily reflect the approved language" set
forth by this Court. Id. at 384, 70 A.3d 665. In that
situation, "only when the Court has occasion to address
the contents of an adopted charge can . . . the trial court
and practitioners[ ] rest assured that the language
adopted is consistent with the Court's instructions." Ibid.
Here, Model Jury Charge (Civil) § 5.10I(A) was applied to
aid the jury in its determination of decedent's employment
status in the context of social legislation. However,
except for the addition of "such other factors as may be
reasonably considered in determining [***43] whether the
employer has control or right to control the person
employed," our Model Jury Charge (Civil) § 5.10I(A)
tracks the language of section 220 of the Restatement
(Second) of Agency. See Carter v. Reynolds, 175 N.J.
402, 410, 815 A.2d 460 (2003). Section 220 defines
"servant" for purposes of establishing a principal's liability
in tort under the doctrine of respondeat superior.
Restatement (Second) of Agency § 220 (1958).
As this Court has acknowledged, "the test for an
employer-employee relationship differs when one
examines for tort-based vicarious liability purposes . . . or
for social legislation purposes such as for workers'
compensation coverage." D'Annunzio, supra, 192 N.J. at
122 n.7, 927 A.2d 113 (quoting 3 Larson, supra, § 60.04).
Because the jury charge given here was used in a context
different from the specific purpose for which the charge
was adopted, the presumption of propriety that attaches
to a trial court's reliance on the model jury charge does
not apply.
The question, therefore, is whether Model Jury Charge
(Civil) § 5.10I(A) was appropriately molded to the facts of
this case, or, if not, whether "a different outcome might
have prevailed had the jury been correctly charged."
Reynolds, supra, 172 N.J. at 289, 798 A.2d 67. A
comparison between Model Jury Charge (Civil) § 5.10I(A)
and the hybrid approach we now endorse shows that the
trial court did not instruct the jury as to each factor
outlined in Pukowski and
D'Annunzio. [***44] Nevertheless, to the extent
such [*597] omissions were error, under the
unusual [**18] facts of this case, we do not find the
charge so erroneous as to require reversal.
Here, decedent entered into a loosely defined service
contract, which was made terminable at will by either
party. Decedent, who was not a caretaker by trade, had
no social security number, and was not permitted under
the terms of her visa to work in this country, agreed to
provide general services on an as-needed basis, and
retained the discretion to determine the parameters of
that service.
The trial judge correctly informed the jury that "it is not
important whether or not [Liebman] actually ever
exercised control but rather the extent to which the right
to control existed." The judge then cited a number of
factors relevant to that determination, including (1) the
parties' belief regarding the employment relationship, (2)
the degree of skill necessary for performance of the work,
(3) the length of time anticipated for the performance of
the services, (4) the regularity and method of payment,
(5) the employer's lack of payroll deductions, (6) who
provides the supplies necessary for the work, and (7)
whether the employment was terminable [***45] at will.
The judge also instructed the jury to consider "such other
factors as may be reasonably considered" to assess
107
Page 18 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
whether Liebman "controlled or had the right to control"
decedent. Not including the catchall provision, these
factors account for seven of the twelve factors identified
in Pukowski and adopted for use in the context of social
legislation in D'Annunzio.
The jury charge failed to instruct the jury with regard to
the importance of whether decedent's employment was
supervised or unsupervised. However, the record
indicates that, apart from Ross "occasionally" checking in
on decedent and her father, decedent's work as
Liebman's caretaker was entirely unsupervised. Indeed,
Ross testified that decedent maintained "a lot of
independence" in the performance of her duties.
The jury charge also failed to instruct the jury on the
importance of whether there was an annual leave policy,
whether [*598] decedent accrued retirement benefits,
and whether Liebman paid social security taxes.
However, each of these factors suggested that decedent
was an independent contractor: no retirement benefits
were contemplated, Liebman paid no social security
taxes, and there was no indication of an
annual [***46] leave policy. Accordingly, inclusion of
these factors in the jury charge would have supported
rather than undercut the jury's determination. Because
the omission of these factors did not have the capacity to
change the jury's determination, the error did not warrant
reversal. Viscik, supra, 173 N.J. at 18, 800 A.2d 826.
Additionally, the jury charge did not instruct the jury
regarding the importance of whether decedent's work
was an integral part of Liebman's business. This factor
addresses a situation where the employer, who runs a
business composed of two or more overlapping
operations, subcontracts a portion of the work in
furtherance of his or her core business. See 3 Larson,
supra, § 62.02. Because Liebman did not run a business,
let alone a complex business with multiple operations,
this consideration does not apply.
The Appellate Division held that the trial court's failure to
instruct the jury on the relative importance of the worker's
economic dependence upon the employer was fatal
because "decedent would appear to have been entirely
economically dependent on Liebman." Kotsovska, supra,
433 N.J. Super. at 548, 81 A.3d 715. We agree that the
degree of a worker's economic dependence upon an
employer is an important consideration in workers'
compensation disputes. See, e.g., D'Annunzio,
7 As the record indicates, decedent's daughter and son-in-law
agreed to provide for any of decedent's healthcare costs, and
supra, [**19] 192 N.J. at 122, 927 A.2d 113; Caicco v.
Toto Bros., Inc., 62 N.J. 305, 309, 301 A.2d 143 (1973);
Hannigan v. Goldfarb, 53 N.J. Super. 190, 205, 147 A.2d
56 (App.Div.1958). However, [***47] this consideration
was misapplied here.
HN18 A worker's economic dependence upon an
employer is a factor to be considered when a worker
performs a function that constitutes a part of the
employer's business. See Re/Max of N.J., [*599] supra,
162 N.J. at 286, 744 A.2d 154 (finding real-estate agents
to be employees of real-estate brokers in part because "it
is only the broker that can lawfully enforce a client's
obligation to pay [the agent's] commission"). This
consideration looks to whether the "decedent's labor was
a cog in the wheel of [the employer's] operation as a
subcontractor of [the employer] in as realistic a sense as
the [work] being done by [the employer's] regular
employees." Caicco, supra, 62 N.J. at 310, 301 A.2d 143.
Further, "[t]he independence of [the worker] is not to be
determined by looking at the [worker] or job alone, but by
judging how independent, separate and public his [or her]
business service is in relation to a particular employer."
Dee v. Excel Wood Prods. Co., 86 N.J. Super. 453, 460,
207 A.2d 203 (App.Div.) (internal quotation marks and
citation omitted), certif. denied, 44 N.J. 586, 210 A.2d 628
(1965). Thus, this assessment is considered together
with the factor addressing the integration of the
employee's business with that of the employer's. See
D'Annunzio, supra, 192 N.J. at 122-23, 927 A.2d 113
(holding "the worker's economic dependence on the work
relationship," along with the other two considerations, is
assessed [***48] under the twelve-part Pukowski factor
test).
Here, decedent lived with Liebman and drew most, if not
all of her income from her employment as Liebman's
caretaker.7 However, as previously noted, decedent's
employment was not in furtherance of Liebman's
business. Thus, considering the nature of decedent's
employment, it was not reversible error to fail to include
this consideration in the jury charge.
Finally, HN19 we address the Appellate Division's
conclusion that the portion of the trial court's instruction
explaining "that the lack of payroll deductions and
payment in cash are factors weighing against a finding of
employment was incomplete and misleading." These
factors have been "de-emphasized," as the appellate
panel [*600] observed, see Brower v. Rossmy, 63 N.J.
there is some indication that decedent may have been drawing
a pension.
108
Page 19 of 20 Estate of Kotsovska, ex rel. Kotsovska v. Liebman
Super. 395, 405-06, 164 A.2d 754 (App.Div.1960), in the
sense that our courts have recognized the comparative
value of the nature-of-the-work test over the control test
in the context of social legislation, see D'Annunzio, supra,
192 N.J. at 121-22, 927 A.2d 113; Caicco, supra, 62 N.J.
at 310, 301 A.2d 143. However, no case has stated that
the control test no longer applies. To the contrary, we
have incorporated [***49] without reservation the control
factors, including the method of payment and whether the
employer deducts payroll taxes, into the hybrid analysis
adopted in D'Annunzio, supra, 192 N.J. at 121-22, 927
A.2d 113. Moreover, after reciting the control factors, the
trial judge instructed the jury that it "may give whatever
weight you deem appropriate to the fact[s] as you find to
exist to reach your decision." Considering the jury charge
as a whole, we disagree that it was incomplete or
misleading merely because it instructed the jury that lack
of payroll deductions and the [**20] method of payment
are factors for the jury to consider.
In conclusion, "[a]lthough the charge could have been
more artfully drafted," Mogull v. CB Commercial Real
Estate Grp., Inc., 162 N.J. 449, 466, 744 A.2d 1186
(2000), the charge "did not misinform the jury as to the
controlling law and was neither ambiguous nor
misleading," R.B., supra, 183 N.J. at 325, 973 A.2d 511.
To the extent that it omitted relevant factors for
consideration under the Pukowski-D'Annunzio approach
we now endorse, those factors inured to the benefit of
petitioner, and therefore did not result in prejudice to
Liebman. As such, we find that the charge, though
flawed, does not warrant reversal.
VI.
Accordingly, we reverse the judgment of the Appellate
Division, and reinstate the jury's verdict.
Chief Justice RABNER and Justices LaVECCHIA,
ALBIN, [***50] PATTERSON and FERNANDEZ-VINA
join in JUSTICE SOLOMON's opinion. JUDGE CUFF
(temporarily assigned) did not participate.
End of Document
109
---- Reprinted with permission of LexisNexis.
RACHEL KRANZ, a minor by her Guardian ad Litem, SHELLY KRANZ and JONATHAN KRANZ, Individually,
Plaintiffs-Appellants, v.
STEVEN SCHUSS, M.D., and TEANECK PEDIATRICS, P.A., Defendants-Respondents.
DOCKET NO. A-4918-13T1
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2016 N.J. Super. LEXIS 120
October 26, 2015, Argued August 31, 2016, Decided
SUBSEQUENT HISTORY: [*1] Approved for Publication August 31, 2016. PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2066-12. CASE SUMMARY: OVERVIEW: HOLDINGS: [1]-In a malpractice ac-tion, the court reversed the trial court's grant of a pro tanto $ 2 million credit for defendants against any judgment entered in favor of plaintiff based on a State of New York lawsuit settlement because the court found that after examining the Joint Tortfeasors Contribution Law, N.J.S.A. §§ 2A:53A-1 to 2A:53A-5, and the Comparative Negligence Act, N.J.S.A. §§ 2A:15-5.1 to 2A:15-5.8, even though the settling New York defendants were not, and, because of lack of personal jurisdiction, could not be parties to the New Jersey suit, defendants were not entitled to a pro tanto credit and were only entitled to contribution, namely a reduction of any award against them by the amount of fault allocated by the jury to the settling New York defendants. OUTCOME: Judgment reversed; case remanded for further proceedings. CORE TERMS: fault, joint tortfeasors, settlement, apportionment, settling, pro tanto, non-settling, tort-feasor, doctor, dysplasia, discovery, reduction, mu-nicipality, windfall, apportion, diagnose, certif, birth, collateral source rule, settling tortfeasor, percentage
of fault, medical malpractice, expert reports, adjudi-cated, concurrent, allocated, finder, rata, cross-mo-tion, surgery LexisNexis(R) Headnotes [HN1] The Comparative Negligence Act, N.J.S.A. §§ 2A:15-5.1 to 2A:15-5.8, and the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. §§ 2A:53A-1 to 2A:53A-5, comprise the statutory framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff's harm. In Young v. Latta, the New Jersey Supreme Court has held that, in every case in which there are multiple de-fendants, whether or not a cross-claim for contribu-tion has been filed, a non-settling tortfeasor is enti-tled to a credit reducing any judgment by the degree of fault allocated by the jury to a settling tortfeasor. The Court cites extensively to its seminal case of Judson v. Peoples Bank and Trust Company of Westfield, and Judson's historical analysis of the JTCL. Judson provides two principles important to our implementation of the JTCL: that a settling tort-feasor shall have no further liability to any party be-yond that provided in the terms of settlement, and that a non-settling defendant's right to a credit reflect-ing the settler's fair share of the amount of the ver-dict, regardless of the actual settlement, represents the judicial implementation of the statutory right to contribution. After Judson, the Court has held that a non-settling defendant does not get an increased credit if a settling tortfeasor pays more than his or her pro rata share of the liability.
111
Page 2 2016 N.J. Super. LEXIS 120, *
Torts > Procedure > Multiple Defendants > Joint & Several Liability Torts > Negligence > Defenses > Comparative Negligence > Types Torts > Negligence > Defenses > Comparative Negligence > Multiple Parties > Contribution
[HN2] Pursuant to the Comparative Negligence Act (CNA), N.J.S.A. §§ 2A:15-5.1 to 2A:15-5.8, the finder of fact must make an allocation of causative fault be-tween settling and non-settling defendants so that the court can calculate the amount of the credit due to the non-settler even though the non-settler cannot pursue a claim for contribution against the settler. The effect of the CNA was to replace the former pro rata liability of joint tortfeasors under the Joint Tort-feasors Contribution Law, N.J.S.A. §§ 2A:53A-1 to 2A:53A-5, with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault. A necessary corollary of this scheme is to deny to comparative-negligence joint tortfeasors a reduction of their liability based on a plaintiff's pretrial settlement with a defendant who is never found to be liable at all. Thus, under the com-parative-negligence scheme, a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated among all other defendants. Unless the settling defendant's percent-age of liability is adjudicated at trial, there is simply no right in the adjudicated tortfeasors to a reduction of their own separately-allocated responsibility for the verdict. Civil Procedure > Appeals > Standards of Review > De Novo Review Civil Procedure > Appeals > Standards of Review > Fact & Law Issues
[HN3] When an appeal presents a purely legal issue, the appellate court reviews the trial court's decision de novo. Torts > Procedure > Multiple Defendants > Joint & Several Liability Torts > Procedure > Multiple Defendants > Contribution > General Overview Torts > Negligence > Defenses > Comparative Negligence > Multiple Parties > Contribution
[HN4] For purposes of the Joint Tortfeasors Contri-bution Law, N.J.S.A. §§ 2A:53A-1 to 2A:53A-5, joint tortfeasors means two or more persons jointly or sev-erally liable in tort for the same injury to person or property, whether or not judgment has been recov-ered against all or some of them. N.J.S.A. § 2A:53A-
1. Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share. N.J.S.A. § 2A:53A-3. Torts > Procedure > Multiple Defendants > Contribution > General Overview Torts > Negligence > Defenses > Comparative Negligence > Multiple Parties > Contribution Torts > Negligence > Defenses > Comparative Negligence > Types
[HN5] The right to contribution flows from joint liability and not joint, common or concurrent negligence. When one defendant settles, the remaining code-fendant or codefendants are chargeable with the to-tal verdict less that attributable to the settling defend-ant's percentage share. The Comparative Negli-gence Act, N.J.S.A. §§ 2A:15-5.1 to 2A:15-5.8, in turn, requires the fact finder to determine the extent, in the form of a percentage, of each party's negli-gence or fault. The percentage of negligence or fault of each party shall be based on 100 percent and the total of all percentages of negligence or fault of all the parties to a suit shall be 100 percent. N.J.S.A. § 2A:15-5.2(a)(2). The statutes' objectives are best served when the factfinder evaluates the fault of all potentially responsible parties. Simply put, the law favors apportionment even where the apportionment proofs are imprecise, allowing only for rough appor-tionment by the trier of fact. Torts > Procedure > Multiple Defendants > Joint & Several Liability Torts > Damages > Collateral Source Rule > General Overview
[HN6] The primary effect of the collateral source rule is to eliminate double recovery to plaintiffs. However, by its terms, the collateral source rule does not apply when a plaintiff receives benefits for injuries caused by a joint tortfeasor. N.J.S.A. § 2A:15-97. Torts > Procedure > Multiple Defendants > Contribution > General Overview Torts > Negligence > Defenses > Comparative Negligence > Types
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Torts > Procedure > Multiple Defendants > Joint & Several Liability
[HN7] New Jersey courts have permitted apportion-ment of fault by the factfinder in a variety of circum-stances, even though a joint tortfeasor is no longer a party in the suit. For example, in Young, the New Jer-sey Supreme Court has held that, even in the ab-sence of a specifically-pled cross claim for contribu-tion, a non-settling tortfeasor was entitled to a credit based upon the allocation of fault to the settling de-fendant who was no longer in the litigation. In Brod-sky v. Grinnell Haulers, Inc., the Court similarly has held that a non-settling tortfeasor was entitled to have any award reduced by the percentage of fault attributable to a joint tortfeasor dismissed from the litigation due to a discharge in bankruptcy. In Brandt, the Court has held that the non-settling defendants were entitled to have the jury allocate fault as to the defendants dismissed from the litigation because of the statute of repose. N.J.S.A. § 2A:14-1.1(a). In Burt v. West Jersey Health Systems, it was held that plaintiff's recovery should be reduced by the percent-age of fault allocated to those defendants dismissed from the litigation because the plaintiff failed to com-ply with the Affidavit of Merit Statute, N.J.S.A. §§ 2A:53A-26 to 2A:53A-29. Torts > Procedure > Multiple Defendants > Joint & Several Liability Torts > Negligence > Defenses > Comparative Negligence > Types Torts > Procedure > Multiple Defendants > Contribution > General Overview
[HN8] In some cases the joint tortfeasor's absence from the suit at its inception has barred a defendant's right to apportionment. COUNSEL: Michael B. Zerres argued the cause for appellants (Blume, Donnelly, Fried, Forte, Zerres & Molinari, P.C., attorneys; Mr. Zerres and Robin A. Donato, on the briefs). Thomas J. Pyle, Jr., argued the cause for respond-ents (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Jay Scott MacNeill, of counsel; Mr. Pyle, on the brief). JUDGES: Before Judges MESSANO, SIMONELLI and CARROLL. The opinion of the court was deliv-ered by MESSANO, P.J.A.D. OPINION BY: MESSANO
OPINION
The opinion of the court was delivered by
MESSANO, P.J.A.D.
"The Comparative Negligence Act and the Joint Tortfeasors Contribution Law [HN1] comprise the statutory framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff's harm." Town of Kearny v. Brandt, 214 N.J. 76, 96, 67 A.3d 601 (2013). In Young v. Latta, 123 N.J. 584, 586, 589 A.2d 1020 (1991), the Court held that, "in every case in which there are multiple de-fendants, whether or not a cross-claim for contribu-tion has been filed," a non-settling tortfeasor is enti-tled to a credit reducing any judgment by the degree of fault allocated by the jury to a settling tortfeasor. The Court cited extensively to its seminal case [*2] of Judson v. Peoples Bank & Trust Company of Westfield, 17 N.J. 67, 92-94, 110 A.2d 24 (1954), aff'd on reconsideration, 25 N.J. 17, 34, 134 A.2d 761 (1957), and Judson's historical analysis of the Joint Tortfeasors Contribution Law (the JTCL), N.J.S.A. 2A:53A-1 to -5. Id. at 590-91, 589 A.2d 1020. Justice Clifford wrote:
Judson . . . provides two principles important to our implementation of the [JTCL]: that a settling tortfeasor shall have no further liability to any party be-yond that provided in the terms of set-tlement, and that a non-settling de-fendant's right to a credit reflecting the settler's fair share of the amount of the verdict--regardless of the actual settle-ment --represents the judicial imple-mentation of the statutory right to con-tribution.
[Id. at 591, 589 A.2d 1020 (empha-sis added).]
After Judson, the "Court [] held that a non-settling defendant does not get an increased credit if a set-tling tortfeasor pays more than his or her pro rata share of the liability." Ibid. (citing Theobald v. Ange-los, 44 N.J. 228, 208 A.2d 129 (1965)).
The subsequent passage of the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1 to -5.8, did not "sap[] the vitality of those principles." Id. at 592, 589 A.2d 1020. [HN2] "Pursuant to the [CNA], the finder of fact must make an allocation of causa-tive fault between settling and non-settling defend-ants so that the court can calculate the amount of the credit due [to] the non-settler even though the non-
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settler cannot pursue a claim for [*3] contribution against the settler." Ibid. As Judge Pressler ex-plained nearly two decades ago,
the effect of the [CNA] was to re-place the former pro rata liability of joint tortfeasors under the [JTCL], . . . with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault. A nec-essary corollary of this scheme is to deny to comparative-negligence joint tortfeasors a reduction of their liability based on a plaintiff's pretrial settlement with a defendant who is never found to be liable at all. Thus, under the com-parative-negligence scheme, a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated among all other defendants.
. . . .
[U]nless the settling defendant's percentage of liability is adjudicated at trial, there is simply no right in the ad-judicated tortfeasors to a reduction of their own separately-allocated respon-sibility for the verdict.
[Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 436-37, 703 A.2d 984 (App. Div. 1997).]
In this appeal, we are called upon to consider whether the motion judge correctly decided that de-fendants were entitled to a pro tanto credit for the amount plaintiffs obtained by way of an out-of-state settlement with tortfeasors who were never [*4] de-fendants in this litigation and could not have been sued in the courts of this State because New Jersey lacked personal jurisdiction. The issue is one of first impression. We conclude that the principles outlined above apply and therefore reverse. I.
The record is undisputed. Rachel Kranz was born in New York in December 2003 and came under the medical care of a series of doctors in New York. In January 2005, Rachel and her family moved to New Jersey, where she began receiving pediatric care from defendant, Steven Schuss, M.D., and his
affiliated practice group, Teaneck Pediatrics (collec-tively, defendants).1 At Rachel's medical check-up in January 2006, Dr. Schuss suspected that she suf-fered from left hip dysplasia. These suspicions were confirmed, and Rachel underwent open reduction surgery and a second follow-up surgery to correct the condition.
1 To avoid confusion, we sometimes use the first names of the plaintiffs. We intend no disrespect by this informality.
On July 30, 2007, with her mother Shelley acting as guardian ad litem (GAL), Rachel commenced suit in New York alleging medical malpractice against the hospital of her birth and several doctors (the New York defendants) who had [*5] attended to her prior to the family's move to New Jersey, claiming dam-ages resulting from the failure to diagnose the dys-plasia. On April 7, 2011, the New York court entered an order approving a structured settlement in the amount of $2 million (the New York settlement).
On March 12, 2012, once again with her mother acting as GAL, and now joined by her father, Jona-than, as a plaintiff on his own behalf, Rachel filed a complaint in New Jersey alleging medical negligence by defendants in their failure to timely diagnose and treat Rachel's dysplasia. It suffices to say that plain-tiffs' experts opined that defendants' failure to diag-nose the dysplasia earlier was a breach of the pro-fessional standard of care and likely increased the probability that Rachel would require open reduction surgery to address her condition and that she would likely develop arthritis in later life. At least one of plaintiffs' experts opined in his report that certain findings, in particular the asymmetry of Rachel's gait and rotation of her hips, most likely would have been present at the age of six months, i.e., before she came under defendants' care. Defendants' experts, to the contrary, essentially concluded [*6] there was no breach of professional standards because Rachel's dysplasia was not clinically detectable until age two, and Dr. Schuss properly and timely diag-nosed the condition and recommended further treat-ment as appropriate.
After discovery ended in December 2013, de-fendants sought an order providing them with a credit of $2 million against any judgment returned in plain-tiffs' favor. Plaintiffs opposed the motion and cross-moved for an order barring defendants from 1) serv-ing any new expert reports, and 2) referring to, or of-fering evidence of, the New York settlement at trial.
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Acknowledging that "[t]he case law in New Jer-sey doesn't seem to give [] any clear definitive an-swer as to what to do in a case like we have here," defense counsel argued that plaintiffs were seeking damages for "the exact same harm" as in the New York litigation. Plaintiffs' counsel also acknowledged the unique procedural circumstances.
Addressing the judge's concern of a potential "windfall," particularly in light of plaintiffs' application to bar any further defense expert reports or any men-tion of the New York settlement, plaintiffs' counsel stated, "I don't know that there's any way to truly avoid a windfall [*7] . . . . However, there [are] public policy decisions in New Jersey saying that where it really truly is unavoidable like it is here, it should in-ure [to] the injured party." Counsel also acknowl-edged that, separate from any apportionment be-tween the New York defendants and these defend-ants, the jury might need to apportion responsibility for the ultimate consequence of any delay in diag-nosing Rachel's injury. See, e.g., Flood v. Aluri-Val-labhaneni, 431 N.J. Super. 365, 372-79, 70 A.3d 665 (App. Div.) (explaining the burden of proof and ap-portionment in failure to diagnose medical malprac-tice cases), certif. denied, 216 N.J. 14, 76 A.3d 533 (2013).
Recognizing the lack of any precedent squarely on point and without an extensive statement of rea-sons, the judge concluded on "general principles of equity . . . that it would be a windfall to the plaintiff[s]" if a $2 million credit was not applied to any verdict in their favor. The judge entered the February 28, 2014 order under review that provided defendants with a $2 million credit "based upon the plaintiffs['] previ-ously pending and now resolved New York State ac-tion involving the same claims of negligence and compensating the plaintiff for the same injuries that are at issue in the instant litigation." The order further stated that $2 million dollars would [*8] be deducted from any verdict "rendered by a jury against [d]efend-ants," who "shall only be responsible for the remain-der of the verdict after the credit is applied . . . ."2
2 The judge did not address the cross-mo-tion and no separate order was entered.
The parties thereafter appeared before the Civil Division presiding judge, and plaintiffs voluntarily dis-missed their complaint pursuant to an agreement placed on the record, which we have reviewed. De-spite the voluntary dismissal of the complaint, we conclude that the February 28, 2014 interlocutory or-der is reviewable as of right. See Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207, 981 A.2d 96 (App. Div. 2009) (explaining that even a consent
judgment may be appealable as of right if an "eco-nomic stake" hinges on resolution of the appeal). II.
[HN3] Because the appeal presents a purely le-gal issue, we review de novo the judge's decision to give defendants a pro tanto credit for the amount of the New York settlement. Brandt, supra, 214 N.J. at 96, 67 A.3d 601.
[HN4] For purposes of the JTCL, "'joint tortfea-sors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." N.J.S.A. 2A:53A-1.
Where injury or damage is suffered by any person as a result of the wrong-ful act, neglect or [*9] default of joint tortfeasors, and the person so suffer-ing injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share . . . .
[N.J.S.A. 2A:53A-3 (emphasis added).]
[HN5] The right to contribution flows from "'joint lia-bility and not joint, common or concurrent negli-gence.'" Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 72, 861 A.2d 123 (2004) (quoting Farren v. N.J. Tpk. Auth., 31 N.J. Super. 356, 362, 106 A.2d 752 (App. Div. 1954)). "'When one defendant settles, the remaining codefendant or codefendants are chargeable with the total verdict less that attributable to the settling defendant's percentage share.'" Cock-erline v. Menendez, 411 N.J. Super. 596, 618, 988 A.2d 575 (App. Div.) (quoting Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569, 410 A.2d 674 (1980)), certif. denied, 201 N.J. 499, 992 A.2d 793 (2010).
The CNA, in turn, requires the fact finder to de-termine "[t]he extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence
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or fault of all the parties to a suit shall be 100%." N.J.S.A. 2A:15-5.2(a)(2) (emphasis added). "[T]he statutes' objectives are best served when the fact-finder evaluates [*10] the fault of all potentially re-sponsible parties." Brandt, supra, 214 N.J. at 102, 67 A.3d 601. Simply put, "[t]he law favors apportion-ment even where the apportionment proofs are im-precise, allowing only for rough apportionment by the trier of fact." Boryszewski v. Burke, 380 N.J. Super. 361, 384, 882 A.2d 410 (App. Div. 2005), certif. de-nied, 186 N.J. 242, 892 A.2d 1288 (2006).
Plaintiffs argue that the motion judge accorded defendants a "windfall," because given the statutory scheme, there is no legal authority for a pro tanto credit equal to the amount of the New York settle-ment. They note that if the New York defendants were parties to the suit, defendants would not re-ceive a credit for the full settlement amount, but ra-ther would be entitled to a credit based only upon an allocation of fault to the New York defendants.3
3 Plaintiffs also contend that their cross-motion to bar any further discovery and bar defendants from introducing any evidence of the New York settlement should have been granted. As a result, defendants, who have not produced any proof of the New York de-fendants' liability, are not entitled to any allo-cation of fault or resulting credit. We deal with these issues later in this opinion.
Defendants argue the collateral source rule, N.J.S.A. 2A:15-97, and general notions of public pol-icy support the judge's decision. We disagree.
[HN6] The "primary [*11] effect" of the collateral source rule "was to eliminate double recovery to plaintiffs." Perreira v. Rediger, 169 N.J. 399, 409, 778 A.2d 429 (2001). However, by its terms, the col-lateral source rule does not apply when a plaintiff re-ceives benefits for injuries caused by a joint tortfea-sor. N.J.S.A. 2A:15-97.
Defendants argue the New York defendants could not be "joint tortfeasors" because they "were not, and could never have been . . . parties to the New Jersey action." We discuss the significance of that below. However, defendants urged the motion judge to grant them a pro tanto credit precisely be-cause plaintiffs were seeking damages for "the exact same harm" as alleged in the New York litigation. The judge accepted this argument, because his or-der provided that the New York litigation "involv[ed] the same claims of negligence and compensat[ed] the plaintiff for the same injuries that are at issue in the instant litigation." Although defendants deny any
negligence, it would appear from the record before us that the New York defendants and defendants are not successive tortfeasors, but rather joint tortfea-sors, whose alleged collective negligence delayed the diagnosis of Rachel's dysplasia.4
4 As noted, one of plaintiffs' experts opined in his report that certain symptoms of Rachel's [*12] dysplasia were observable before de-fendants began their care. The record does not include the expert reports from the New York litigation; however, the "verified bill of particulars" from that suit includes allegations that the New York defendants, among other things, failed to "timely recognize the pres-ence of left hip dysplasia." Because we are reversing and requiring the re-opening of dis-covery, we hasten to add that our conclusion that the New York defendants and defendants are joint tortfeasors is based solely upon the record before us, and we do not foreclose a contrary conclusion if further discovery proves otherwise.
We also reject defendants' public policy argu-ments. Defendants argue that under New York law, they would be entitled to a pro tanto credit for the settlement plaintiffs reached with the New York de-fendants. See Williams v. Niske, 81 N.Y.2d 437, 440, 615 N.E.2d 1003, 599 N.Y.S.2d 519 (1993) (explain-ing New York's General Obligations Law § 15-108(a)). Defendants contend that permitting a pro tanto credit discourages forum shopping, such as oc-curred here. However, the statutory interplay we de-scribed above is evidence of New Jersey's public policy, and granting defendants a pro tanto credit is contrary to that policy.
We must address, nevertheless, defendants' im-plicit argument that apportionment [*13] under N.J.S.A. 2A:15-5.2(a)(2) is inappropriate because the New York defendants could not have been joined in the same suit. In other words, they could never have been parties. See ibid. (emphasis added) (the fact finder must determine the "extent, in the form of a percentage, of each party's negligence or fault").
We start by recognizing that [HN7] our courts have permitted apportionment of fault by the fact-finder in a variety of circumstances, even though a joint tortfeasor is no longer a party in the suit. For example, as already noted, in Young, supra, 123 N.J. at 596, 589 A.2d 1020, the Court held that, even in the absence of a specifically-pled cross claim for contribution, a non-settling tortfeasor was entitled to a credit based upon the allocation of fault to the set-tling defendant who was no longer in the litigation. In
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Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 116, 853 A.2d 940 (2004), the Court similarly held that a non-settling tortfeasor was entitled to have any award reduced by the percentage of fault attributable to a joint tortfeasor dismissed from the litigation due to a discharge in bankruptcy. In Brandt, supra, 214 N.J. at 103-04, 67 A.3d 601, the Court held that the non-settling defendants were entitled to have the jury allocate fault as to the defendants dismissed from the litigation because of the statute of repose. N.J.S.A. 2A:14-1.1(a). And, in Burt v. West Jersey Health Systems, 339 N.J. Super. 296, 307-08, 771 A.2d 683 (App. Div. 2001), we held that the [*14] plaintiff's recovery should be reduced by the percent-age of fault allocated to those defendants dismissed from the litigation because the plaintiff failed to com-ply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29.
[HN8] In some cases, however, the joint tortfea-sor's absence from the suit at its inception has barred a defendant's right to apportionment. See, e.g., Ra-mos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 184, 510 A.2d 1152 (1986) (no right to ap-portionment against an employer immune from liabil-ity under the Workers' Compensation Act); Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 406-07, 609 A.2d 1299 (App. Div.) (no right to appor-tionment against a fictitiously-named defendant not identified or served prior to trial), certif. denied, 130 N.J. 598, 617 A.2d 1220 (1992); but see Cockerline, supra, 411 N.J. Super. at 617-19, 988 A.2d 575 (con-cluding that, based upon public policy concerns, ap-portionment was appropriate as against fictitious phantom drivers who allegedly caused the accident). Apportionment was not permitted in Ramos and Bencivenga because "as a matter of law, [the] de-fendant[s] could not under any circumstances be [] joint tortfeasor[s] under [the JTCL]." Brandt, supra, 214 N.J. at 102, 67 A.3d 601 (citing Brodsky, supra, 181 N.J. at 115, 853 A.2d 940).
In this case, the New York defendants were never parties to this suit, nor could they have been, because it is undisputed that New Jersey lacked per-sonal jurisdiction over them. Plaintiffs, however, ar-gue that the circumstances are "almost-identical" to the facts presented [*15] in Carter v. University of Medicine and Dentistry of New Jersey, 854 F. Supp. 310 (D.N.J. 1994).
In Carter, plaintiffs filed two separate but concur-rent actions. Id. at 311. One, filed in the Superior Court for the District of Columbia, alleged the failure on the part of a Washington, D.C., doctor to diagno-sis and treat their infant son's congenital brain con-dition while under the doctor's care, i.e., after he was
seven months of age. Id. at 311-12. The parents filed a second suit in federal district court in New Jersey making similar claims against New Jersey medical providers for the period of time before the family moved to Maryland, while their son was under their care, i.e., from birth to the age of six and one-half months. Ibid. Plaintiffs settled with the Washington, D.C., physician, and the New Jersey defendants moved in limine to have the jury apportion the "caus-ative fault between the settling and nonsettling de-fendants." Id. at 312. The plaintiffs sought to pre-clude the defendants from asserting the Washington, D.C., doctor was negligent or that his negligence contributed to their son's condition. Id. at 311.
Examining at length the JTCL, the CNA and precedent we cited above, the judge rejected the plaintiffs' argument that apportionment was improper because the settling doctor was "not technically a party [*16] to this lawsuit and hence cannot be a joint tortfeasor within the meaning of the relevant statutes." Id. at 314. The judge concluded that the "splitting of the action for purely jurisdictional pur-poses does not vitiate [the Washington, D.C., doc-tor's] status as a settling defendant insofar as this ac-tion is concerned." Id. at 315. The judge said the claims against all the defendants were "identical and inextricably interwoven," explaining:
[D]istilled to its purest essence, the New Jersey action concerns the al-leged misdiagnosis of the infant plain-tiff's hydrocephalic condition from birth to [six and one-half] months of age, while the Washington action was pred-icated on a simple extension of that purported misdiagnosis from seven to eighteen months. Thus, given the fact that the Washington, D.C. lawsuit is distinguishable from the present action only by jurisdictional happenstance, it logically (and equitably) follows that the jury in this case should be entitled to consider the relative fault of the set-tling Washington, D.C. physician.
[Ibid.]
Defendants' attempts to distinguish Carter are wholly without merit. They note the Washington, D.C., settlement agreement specifically permitted a reduction in damages in the [*17] New Jersey litiga-tion by the percentage of liability attributed to the set-tling doctor, that certain experts were the same in both cases and the suits were pending at the same
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time. However, the JTCL and the CNA permit the non-settling tortfeasor a reduction of damages with-out regard to whether it is expressly permitted by a settlement agreement. There is nothing in this record to demonstrate defendants are unable to obtain the name of plaintiffs' experts in the New York action and depose them, thereby establishing their status as joint tortfeasors and obtaining the benefit of appor-tionment under the JTCL and the CNA. Although this case was not prosecuted concurrently with the New York case, as a minor, Rachel's cause of action did not have to be commenced in New Jersey until two years after she turned eighteen years of age, N.J.S.A. 2A:14-2.5 We might conclude the lack of concurrent litigation mattered if defendants were in fact prejudiced by the delay in prosecuting the New Jersey suit, but we fail to see any prejudice to de-fendants' contribution rights. See, e.g., Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 387, 709 A.2d 779 (1998) (a defendant's claim for contribution does not accrue until the plaintiff recovers a judge-ment against it).6
5 We assume the claim was not [*18] for medical malpractice resulting in "injuries sus-tained at birth," which has a different limita-tions period. N.J.S.A. 2A:14-2(b). 6 Defendants have not, for example, claimed that they would be unable to obtain contribution in a subsequent federal diversity action.
The lack of actual prejudice is compelling. In Yousef v. General Dynamics Corp., 205 N.J. 543, 548, 16 A.3d 1040 (2011), the Court considered whether a suit brought in New Jersey by New Jersey residents injured while on a business trip in South Africa due to the alleged negligence of the defendant corporation and its employee-driver, a resident of Florida, should be dismissed under the doctrine of forum non conveniens. The defendants argued that the suit should have been brought in South Africa. Id. at 551, 16 A.3d 1040.
Although the facts involving the accident were disputed, the front-seat passenger of the car said that a stop sign regulating the unilluminated intersec-tion where the crash occurred was bent, making it difficult to see. Ibid. Defendants also obtained infor-mation from a South African witness corroborating the condition of the sign and stating that the intersec-tion was the site of frequent accidents. Id. at 552, 16 A.3d 1040. Additionally, there were provisions of South African law that mostly favored the defendants and would have the likely result [*19] of limiting any award of damages. Id. at 553, 16 A.3d 1040.
We affirmed the trial court's decision denying the defendants' motion to dismiss. Id. at 555-56, 16 A.3d 1040. The Court conducted an exhaustive review of the equitable considerations that underpin the doc-trine of forum non conveniens, and noting "[a]t least presumptively, a plaintiff is entitled to his choice of forum," the Court concluded that the "defendants failed to carry their burden of demonstrating that New Jersey [was] a 'demonstrably inappropriate' forum." Id. at 567, 16 A.3d 1040.
Addressing specifically the defendants' argu-ment that they were prejudiced by the lack of ability to implead the South African municipality as a third-party defendant, the Court said:
Because the South African munici-pality cannot be impleaded as a party, New Jersey's [CNA], which only ap-plies to "parties," does not permit allo-cation of fault between defendants and the non-party municipality. See N.J.S.A. 2A:15-5.2(a)(2) ("The per-centage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%." (emphasis added)). Assuming that defendants have taken steps nec-essary to preserve their rights against the municipality under South African law, and [*20] assuming that there is adequate evidence to support a claim of municipal liability going to the jury, the trial court may consider -- as a mat-ter of equity -- allowing the jury to con-sider apportioning fault between de-fendants and the municipality. In this way, the disadvantage to defendants in trying this case in New Jersey will be greatly diminished if, in the event of a determination of liability, they can ap-portion damages in a way consistent with the [CNA].
[Id. at 570-71, 16 A.3d 1040.]
Although the federal district court's decision in Carter is not controlling, we believe its reasoning, tempered by the Court's dicta in Yousef, is persua-sive. Defendants' "all-or-nothing" defense may un-dercut their ability to prove that the New York defend-ants were in fact negligent, thereby denying defend-ants, at the least, the benefit of apportionment. That
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strategic decision, however, is not prejudice that in-exorably results from application of the JTCL and the CNA to the unique circumstances of this case.
We are convinced that equity is not achieved by providing defendants with a pro tanto credit in this litigation for the amount of the New York settlement. That result is an undeserved windfall for defendants, and it finds [*21] no support in relevant case law. The equitable result is to permit defendants to have any judgment that plaintiffs may secure against them reduced by the amount of fault a jury attributes to the New York defendants. We are therefore compelled to reverse the order under review.
Finally, plaintiffs claim that their cross-motion should have been granted, discovery should have been closed, and defendants should have been barred from furnishing any further expert reports or
introducing evidence regarding the New York settle-ment. The natural consequence of plaintiffs' argu-ment is that defendants are not entitled to any credit, because they proffered no evidence establishing that the settling defendants were negligent, and, hence, no basis for a jury to apportion fault.
In light of our decision which completely upends the posture of the litigation, we conclude the result urged by plaintiffs is unfair. We therefore direct the Law Division to reinstate the complaint, re-open the discovery period and provide the parties with a rea-sonable amount of additional time to conduct discov-ery and serve additional reports, anticipating the like-lihood of discovery that might necessarily cross state lines. [*22]
Reversed and remanded. We do not retain juris-diction.
119
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ROCKY NEVINS, Plaintiff-Appellant, and SYLVIA STEVENS, Plaintiff, v.
JEFF PAN, M.D., Defendant-Respondent, and ADAM LIPSON, M.D., THOMAS KOWALENKO, D.O. and
UNION COUNTY NEUROSURGICAL ASSOCIATES, Defendants.
DOCKET NO. A-2980-13T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2015 N.J. Super. Unpub. LEXIS 2444
October 5, 2015, Argued
October 26, 2015, Decided NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS. PRIOR HISTORY: [*1] On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3566-10. CORE TERMS: standard of care, deviated, doctor, okay, jury charge, summary judgment, directed ver-dicts, interrogatory, informed consent, surgery, devi-ation, patient, notice of appeal, sheet, jury verdict, new trial, interlocutory orders, certif, medical school, malpractice, pain, medical provider, plain error, inap-propriate, misleading, producing, opening, cure, medical standard, cause of action COUNSEL: William L. Gold argued the cause for ap-pellant (Bendit Weinstock, P.A., attorneys; Mr. Gold, on the brief). James B. Sharp argued the cause for respondent (Scarinci & Hollenbeck, L.L.C., attorneys; Mr. Sharp and Benjamin A. Hooper, on the brief). JUDGES: Before Judges Fasciale and Nugent. OPINION
PER CURIAM
In this medical malpractice case, plaintiff Rocky Nevins appeals from a January 30, 2014 order dis-
missing his complaint and entering judgment for de-fendant Dr. Jeff Pan following a jury verdict of no cause of action. We affirm. I.
We discern the following facts from the evidence adduced at trial. On September 23, 2008, plaintiff presented himself at the emergency room complain-ing of severe back pain and urinary hesitancy. The emergency room doctor ordered an MRI, which showed a herniated disc, and requested a consult from the on-call neurosurgeon, Dr. Pan.
Dr. Pan examined plaintiff and concluded that "surgery is not indicated at this time[.]" Dr. Pan pre-scribed anti-inflammatory steroids and pain killers, and sought to discharge plaintiff from the hospital. Plaintiff, however, contacted Dr. Thomas Kow-alenko, [*2] his father's physician, expressing a de-sire to remain in the hospital. Dr. Kowalenko then ad-mitted plaintiff into the hospital. Plaintiff remained there until September 28, 2008, under the care of Dr. Kowalenko and Dr. Yung Choi, an anesthesiologist and pain specialist.
Upon plaintiff's discharge, Dr. Kowalenko and Dr. Choi treated plaintiff until November 25, 2008, when Dr. Choi referred plaintiff to Dr. Adam Lipson, a neurosurgeon. On January 19, 2009, Dr. Lipson performed surgery on plaintiff for a condition known as cauda equina syndrome.1 Plaintiff suffered from post-surgery urinary and bowel dysfunction and im-potence.
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1 Cauda equina syndrome is a neurologic condition that impacts the roots of the spinal nerves below the first lumbar. Stedman's Medical Dictionary 328, 1892 (28th ed. 2006).
Plaintiff and his wife filed a complaint alleging medical malpractice against Drs. Pan, Lipson, and Kowalenko, and Union County Neurosurgical Asso-ciates (UCNA). Plaintiff's wife, Dr. Lipson, Dr. Kow-alenko, and UCNA were subsequently dismissed from the lawsuit. Plaintiff then moved for partial sum-mary judgment on Dr. Pan's liability, which the court denied. The case proceeded to trial solely on plain-tiff's [*3] claims that Dr. Pan deviated from the ac-cepted standard of care, and that Dr. Pan failed to obtain plaintiff's informed consent for the treatment he prescribed.
Plaintiff presented testimony from Dr. James Macon, an expert in the field of neurological surgery. Dr. Macon opined that Dr. Pan violated the standard of care. Dr. Pan presented testimony from Dr. Doug-las Cohen, also an expert in the field of neurosur-gery. He opined that Dr. Pan did not deviate from the standard of care.
At the close of the evidence, plaintiff moved for directed verdicts on apportionment of damages be-tween a pre-existing condition and injuries allegedly resulting from the purported malpractice, and devia-tion from the standard of care, both of which were denied. The jury then returned a verdict of no cause of action, finding no deviation from the standard of care, and that plaintiff provided informed consent for the treatment provided by Dr. Pan.
On appeal, plaintiff argues that (1) the trial court erroneously denied his motion for summary judg-ment on liability; (2) the trial court erroneously denied his motion for a directed verdict on deviation from the accepted medical standard; (3) the trial court improp-erly [*4] defined on the jury verdict sheet the rea-sonable patient standard applicable to plaintiff's in-formed consent claim; (4) the trial court erroneously denied his motion for a directed verdict on allocation of damages; and (5) prejudicial comments by de-fense counsel warrant a new trial. II.
We begin by addressing plaintiff's contention for the first time that the trial court erred by denying his motion for summary judgment on liability. We decline to address this argument because plaintiff failed to preserve the issue on appeal.
Rule 2:5-1(f)(3)(A) requires that the appealing party "designate the judgment, decision, action or
rule, or part thereof appealed from" in its notice of appeal. It is well established that when a party ap-peals from a final judgment, the party may also "ap-peal from all interlocutory orders that have not been rendered moot or definitively ruled upon by the ap-pellate court in a prior or separate appeal." Pressler & Verniero, Current N.J. Court Rules, comment 2.3.2 on R. 2:2-3 (2015). A denial of summary judgment is an interlocutory order. Taylor v. GE Co., 208 N.J. Su-per. 207, 210, 505 A.2d 190 (App. Div.), certif. de-nied, 104 N.J. 379, 517 A.2d 388 (1986).
However, an interlocutory order is only pre-served as a subject for appeal if it is specifically iden-tified in the notice of appeal or [*5] case information statement. Pressler & Verniero, supra, comment 2.3.2 on R. 2:2-3; see also Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J. Super. 577, 588, 928 A.2d 37 (App. Div. 2007). If an order is not listed, "the right to appeal therefrom is deemed waived." Pressler & Verniero, supra, comment 2.3.2 on R. 2:2-3 (citing Naporano Assocs. v. B & P Builders, 309 N.J. Super. 166, 178, 706 A.2d 1123 (App. Div. 1998)). Although a party's failure to "designate an order in the notice of appeal" can be overlooked in "appropriate circum-stances," Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 97 n.3, 96 A.3d 310 (App. Div. 2014), this is not one of them.
Plaintiff failed to identify in both his notice of ap-peal and case information statement the interlocu-tory order denying him summary judgment on liabil-ity. Moreover, plaintiff does not even allude to the summary judgment order in his notice of appeal or case information statement, he only references the "trial" and subsequent jury verdict. See Synnex Corp., supra, 394 N.J. Super. at 588 (finding the ap-peal properly before the court when the text of the case information statement specifically references the order in question and states it is appealing from the "judgment" which necessarily includes all inter-locutory orders). Plaintiff's failure to reference the summary judgment order is not fatal to the consider-ation of the rest of his appeal, which relates solely to the final order, and thus does not warrant the rules to be relaxed in the interest of justice. R. 1:1-2(a).2
2 We note that plaintiff's argument would be unsuccessful [*6] even if we considered it on the merits. We agree with the motion judge that plaintiff's and defendant's experts disa-greed "as to whether Dr. Pan deviated from the standard of care by failing to recommend surgery." Thus, plaintiff was not entitled to summary judgment on liability as a matter of law because a genuine issue of material fact
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existed as to whether Dr. Pan complied with the standard of care.
III.
We disagree with plaintiff's contention that both experts conceded that Dr. Pan deviated from the standard of care. As a result, we conclude that the trial court properly denied plaintiff's motion for a di-rected verdict.
In deciding a motion for directed verdict at the close of the evidence, the trial court must "accept as true all evidence presented . . . and the legitimate inferences drawn therefrom, to determine whether the proofs are sufficient to sustain a judgment[.]" Pri-oleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558, 570, 85 A.3d 1015 (App. Div. 2014), aff'd, ___ N.J. ___, 2015 N.J. LEXIS 957 (2015). The court is not concerned with "'the worth, nature or extent (beyond a scintilla) of the evidence, but only with its exist-ence, viewed most favorably to the party opposing the motion.'" Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969)).
If reasonable minds could reach different conclu-sions, the motion must be denied. Id. at 569-70. However, if the [*7] evidence is such that one party must prevail as a matter of law, then a directed ver-dict is appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269, 827 A.2d 1040 (2003). We apply the same standard that governed the trial court when reviewing an order granting or denying a motion for directed verdict. Ibid.
We agree with the trial court that there was a jury question on whether Dr. Pan deviated from the ac-cepted medical standard. Plaintiff's argument, that both experts agreed on the applicable standard of care and that Dr. Pan deviated from it, ignores much of the trial testimony that suggests otherwise. Plain-tiff highlights the following excerpt from Dr. Cohen's trial testimony:
Q: Would you agree that the stand-ard of care requires either the surgeon recommend surgery or he follow up?
A: I would say, in a general sense, one of those two, yes.
Q: Okay.
A: Although follow[ ]up does not necessarily mean re-evaluation of the patient in every case.
Q: Okay. Was there any follow[ ]up done by Dr. Pan in this case?
A: No, there was not. Plaintiff also notes Dr. Macon's deposition testimony:
Q: Fair enough. Okay. Was there anything else that the standard of care allowed aside from surgery?
A: Yes, he could have arranged for a careful follow up with more detailed [*8] and comprehensive evaluation of the sacral nerve roots.
However, in his trial testimony, Dr. Cohen disagreed that the standard of care required Dr. Pan to person-ally follow up with plaintiff. Dr. Cohen also repeatedly maintained that Dr. Pan's treatment of plaintiff "was consistent with the standard of care."
Additionally, contrary to plaintiff's contentions on appeal, Dr. Pan's counsel never admitted that Dr. Pan deviated from the standard of care when he was discussing the issues with the court and stated:
[Defendant's counsel]: Okay. Judge . . . I would just suggest to the [c]ourt that the analogy that I would draw is if a complaint is filed against the doctor and in the course of providing answers to interrogatories, the doctor admits that he deviated from accepted stand-ards of medical practice. As the pretrial discovery then went forward in that case, there would not be a need for the plaintiff to come up with an expert re-port opining that the doctor deviated for the simple reason that the doctor had admitted that he deviated.
Dr. Pan's counsel was clearly making an analogy in the context of arguing to the trial court that an expert report was not required to introduce testimony from Dr. [*9] Kowalenko, and therefore was not an ad-mission that Dr. Pan deviated from the accepted medical standard.
Finally, plaintiff contends that the trial court's ref-erence to Dr. Pan only examining plaintiff for a "short amount of time" was unsupported by and mischarac-terized the expert testimony in that both experts agreed that the standard of care required either sur-gery or a follow up. This argument is without merit. The trial court correctly pointed out that there were conflicting expert opinions, which created a jury question on deviation. Therefore, the trial court
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properly denied plaintiff's motion because, when viewing the evidence in the light most favorable to Dr. Pan, reasonable minds could reach different con-clusions on what the appropriate standard of care was and thus whether Dr. Pan deviated from it. IV.
We reject plaintiff's assertion that the trial court committed plain error on the verdict sheet by improp-erly defining reasonable patient on plaintiff's in-formed consent claim.
Ordinarily, "a trial court's interrogatories to a jury are not grounds for reversal unless they were mis-leading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418, 690 A.2d 575 (1997). When "reviewing an interrogatory for reversi-ble error, we should [*10] consider it in the context of the charge as a whole." Ponzo v. Pelle, 166 N.J. 481, 491, 766 A.2d 1103 (2001). An "accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory." Ibid. We apply the plain error standard because plaintiff's counsel did not object to the language in the verdict sheet at trial. R. 2:10-2. That is, the error must be "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.
The Model Jury Charge for informed consent provides:
The plaintiff must prove all of the fol-lowing elements: (1) the defendant doctor failed to give the plaintiff all of the information that a reasonable per-son in the plaintiff's position would ex-pect a doctor to disclose so that the plaintiff might make an informed deci-sion about the course of treatment; (2) the undisclosed risk (of the treat-ment)/(of non-treatment) occurred; (3) a reasonable person under the circum-stances of this case would not have consented to (or would have chosen to undergo) the treatment or operation had he/she been so informed; and (4) the course of treatment or operation (or failure to operate or treat) was a proxi-mate cause in producing plaintiff's inju-ries or conditions.
[Model Jury Charge [*11] (Civil), "Informed Consent" (Mar. 2002) (em-phasis added).]
Here, the jury interrogatory read: "Would a reasona-ble person under the circumstance of this case have chosen a course of treatment different from the course Dr. Pan took?"
The trial court's use of different language in the interrogatory does not amount to plain error. Plaintiff takes issue with the trial court focusing on the actions that "Dr. Pan took" rather than what course a reason-able patient would have chosen if fully informed. However, in the written charge presented to the jury, the trial court followed the language from the Model Jury Charge.
Therefore, when reading the verdict sheet as a whole, accompanied by the jury charge, it cannot be said that the interrogatory was so misleading, con-fusing, or ambiguous that it was clearly capable of producing an unjust result. See Flood v. Aluri-Val-labhaneni, 431 N.J. Super. 365, 379, 70 A.3d 665 (App. Div.) (holding that "[b]ecause the charge was correct, and the questions posed on the jury verdict sheet correctly stated the law, any deviation was in-significant"), certif. denied, 216 N.J. 14, 76 A.3d 533 (2013). V.
We conclude that the trial court's curative in-structions and jury charge were sufficient to cure any purported prejudicial remarks referencing Dr. Kow-alenko's culpability by Dr. Pan's [*12] counsel. Thus, there is no basis to grant a new trial.
We may not grant a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Caldwell v. Haynes, 136 N.J. 422, 432, 643 A.2d 564 (1994). "Fleeting comments, even if improper, may not warrant a new trial, partic-ularly when the verdict is fair." Jackowitz v. Lang, 408 N.J. Super. 495, 505, 975 A.2d 531 (App. Div. 2009). "[E]ven a large number of errors, if inconsequential, may not operate to create an injustice." Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55, 974 A.2d 1070 (2009). Moreover, "a clear and firm jury charge may cure any prejudice created by coun-sel's improper remarks during opening or closing ar-gument." City of Linden v Benedict Motel Corp., 370 N.J. Super. 372, 398, 851 A.2d 652 (App. Div.), cer-tif. denied, 180 N.J. 356, 851 A.2d 650 (2004).
Dr. Pan's counsel indicated during his opening statement:
Now, I just want to emphasize something to you, so you understand and then I'll go back. Just to digress for a second. Dr. Pan examined him for
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numbness he didn't have. Dr. Kow-alenko examined him. He didn't have it. Dr. Choi examined him. He didn't have it. All during the course of that hospital-ization[,] and that's important.
Okay. It's also important to know that cauda equina syndrome is a med-ical condition that physicians learn about in medical school. So, Dr. Kow-alenko learned about it in medical school and he'll tell you that. He's a family practitioner. Dr. Choi learned about it in medical school. He's [*13] a pain management physician. Okay. And Dr. Pan learned about it in medical school, okay, and thereafter, bearing in mind that it's one of those conditions that patients don't present initially to a neurosurgeon. They present to a fam-ily practitioner --
Plaintiff's counsel immediately objected and the trial court overruled the objection stating that Dr. Pan's counsel "knows the limits of what I've instructed."3 Plaintiff argues that Dr. Pan's counsel nevertheless ignored the trial court's instructions at numerous points in his opening statements. However, the trial transcript excerpts cited by plaintiff show that Dr. Pan's counsel was simply summarizing the facts for the jury and about which he believed Dr. Kowalenko would be testifying.4 Dr. Pan's counsel complied with the trial court's instructions.
3 The trial court initially barred Dr. Kow-alenko from testifying about his settlement with plaintiff and his own negligence and lia-bility. 4 The trial court subsequently barred Dr. Kowalenko from testifying completely due to "confusion of the issues and misleading the jury[.]"
Then, during his closing remarks, Dr. Pan's counsel stated:
I'm going to tell you that [plaintiff's burden of proof] is not [*14] met when the case is tried without a single treat-ing physician being called to testify. No Dr. Kowalenko, no Dr. Choi. Interest-ingly enough, no Dr. Lipson. No Dr. Opell, no Dr. Sinha. Not a single per-son who ever participated in the care of [plaintiff] has testified, save Dr. Pan.
So, at a point in time when, again, everybody was concerned about treat-ing the patient appropriately, okay, all of those people, nobody came in here to testify. Okay? And there's a reason. The reason is because the care that was provided by everyone in this case was entirely appropriate. They know it and based upon a fair understanding of the medicine in the case, you know it as well.
Plaintiff's counsel immediately objected and the trial court responded:
I don't think that [Dr. Pan's counsel] was actually suggesting anything else . . . . The only doctor who is at play here, and you'll get this instruction later, is Dr. Pan and whether his treat-ment was a deviation and whether he provided what's called informed con-sent -- you'll get more details. But that's the only one to consider.
Whether any other doctor was in-volved who did or did not treat appro-priately, that's not for you to decide. I don't necessarily think [*15] [Dr. Pan's counsel] was suggesting that, but just to be clear.
Finally, when charging the jury, the trial court stated:
Here's the critical sentence I really want you to pay attention to. Whether or not any other medical provider ren-dered appropriate or inappropriate care is not before you and is not for your consideration. I'm going to read that again. Underline. Whether or not any other medical provider rendered appropriate or inappropriate care is not before you and is not for your consid-eration.
Now, that's so important that I had prevented, I made a ruling that [Dr. Pan's counsel], on behalf of [Dr. Pan], would not be able to call Dr. Kow-alenko, because any implication that he did appropriate care or did not do appropriate care is not what's before
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you. You focus on what was knowable on September 23[], 2008.
The trial court also gave the jury the following lan-guage in the written charge: "Whether or not any other medical provider rendered appropriate or inap-propriate care is not before you and is not for your consideration." This court must presume that the jury followed those instructions. Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97, 74 A.3d 10 (App. Div.), certif. denied, 216 N.J. 366, 80 A.3d 747 (2013). The trial court gave a clear and firm jury charge and the verdict is fair [*16] in light of all the
evidence in the record such that there was no mis-carriage of justice to warrant a new trial. VI.
Plaintiff's remaining argument, that he is entitled to a directed verdict on allocation because Dr. Pan failed to meet his burden of separating the damages attributable to the pre-existing condition from the malpractice, is moot in light of our opinion. The jury never reached the issue of allocation, because the jury found no cause of action against Dr. Pan on lia-bility.
Affirmed.
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ESTATE OF JACK D'AVILA, by TIAGO D'AVILA,
Administrator ad Prosequendum; and DENISE ROCHA, individually, Plaintiffs-Respondents/Cross-Appellants,
v. HUGO NEU SCHNITZER EAST; SIMS HUGO NEU CORPORATION;
HUGO NEU CORPORATION; LYNCH, GIULIANO & ASSOCIATES, P.A.; JERSEY CITY MEDICAL CENTER, PATRICIA A. SCHRADER, M.D.1;
AMY R. CUTSHALL, R.N.; CHRISTINE PANGILINAN, R.N.; CONCHITA GARCIA, R.N.; and LIBERTY SURGICAL ASSOCIATES,
Defendants-Respondents, and FEMCO MACHINE COMPANY, Defendant-Appellant/Cross-Respondent, and RIVERSIDE ENGINEERING,
Defendant, and HUGO NEU SCHNITZER EAST; SIMS HUGO NEU CORPORATION; and HUGO NEU CORPORATION,
Defendants/Third-Party Plaintiffs-Respondents, v.
SIMPSON & BROWN, INC., Third-Party Defendant/Fourth-Party Plaintiff-Respondent/Cross-Appellant,
v. AMERICAN HOME ASSURANCE COMPANY,
Fourth-Party Defendant-Respondent, and WILLIS NORTH AMERICA, INC. (as successor-in-interest to Fleet Insurance Services, Inc.), Fourth-Party
Defendant-Respondent. CONTINENTAL CASUALTY COMPANY, Plaintiff-Respondent,
v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Respondent,
and CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Defendant-Appellant, and SIMPSON & BROWN, INC.,
Intervenor-Defendant/Respondent. CONTINENTAL CASUALTY COMPANY, Plaintiff-Respondent,
v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant,
and CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Defendant-Respondent, and SIMPSON & BROWN, INC.,
Intervenor-Defendant/Respondent.
1 Because all claims against Dr. Schrader have been satisfied, she did not participate in these appeals.
DOCKET NO. A-4439-11T2, A-4705-11T2, A-4713-11T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2015 N.J. Super. Unpub. LEXIS 1938
November 17, 2014, Argued August 10, 2015, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Ordered published by, Modified by, Reported at Estate of D'Avila v. Hugo Neu Schnitzer East, 442 N.J. Super. 80, 121 A.3d 388, 2015 N.J. Super. LEXIS 127 (App.Div., 2015)
127
Page 2 2015 N.J. Super. Unpub. LEXIS 1938, *
PRIOR HISTORY: [*1] On appeal from the Su-perior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-3208-07 and L-3380-09. CORE TERMS: ladder, decedent's, indemnification, insured, coverage, indemnify, fault, indemnity, con-tractual, verdict form, nurse, top, omission, jury trial, contractor, center line, subcontractor, site, summary judgment, endorsement, job site's, insurer, shredder, erected, insurance coverage, subcontract, tied, in-demnitor, juror, recalled COUNSEL: Joseph P. LaSala and Richard J. Wil-liams, Jr., argued the cause for appellant Femco Ma-chine Company in A-4439-11 (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. LaSala and Michael J. Marone, of counsel; Mr. Williams and Mr. Marone, on the briefs). Michael B. Zerres argued the cause for respond-ents/cross-appellants Estate of Jack D'Avila and Denise Rocha, individually, in A-4439-11 (Blume, Donnelly, Fried, Forte, Zerres & Molinari, PC, attor-neys; Mr. Zerres, on the briefs). Scott C. Arnette and Ronald Betancourt argued the cause for respondent/cross-appellant Simpson & Brown in A-4439-11 (Betancourt, Van Hemmen, Greco & Kenyon, LLC and Arnette Law Firm, LLC, attorneys; Mr. Arnette, of counsel; Mr. Betancourt and Virginia A. Harper, on the briefs). Gerard M. Green argued the cause for respondents Hugo Neu Schnitzer East, Sims Hugo Neu Corpora-tion, and Hugo Neu Corporation in A-4439-12 (Law Offices of Gerard M. Green, attorneys; Mr. Green, on the briefs). Catherine J. Flynn Tafaro argued the cause for re-spondents Amy R. Cutshall, R.N. and Jersey City Medical Center [*2] in A-4439-11 (Carroll, McNulty & Kull, LLC, attorneys; Ms. Flynn Tafaro, of counsel; Brad Baldwin, on the brief). Michael R. Ricciardulli argued the cause for respond-ent Conchita Garcia, R.N. in A-4439-11 (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Mr. Ric-ciardulli, of counsel and on the brief; Sarah J. Gurka, on the brief). Abraham E. Havkins (Havkins Rosenfeld Ritzert & Varriale, LLP) argued the cause for appellant Crum & Forster Specialty Insurance Company in A-4705-11 and as respondent in A-4713-11.
Nancy Lem argued the cause for respondent Conti-nental Casualty Company in A-4705-11 (Colliau Elenius, attorneys; Ms. Lem, on the brief). Michael A. Spero argued the cause for appellant American Home Insurance Company in A-4713-11, and as respondent in A-4439-11 and A-4705-11 (Eckert, Seamans, Cherin & Mellott, LLC, attorneys; Mr. Spero, of counsel and on the brief). Margaret T. Korgul argued the cause for respondent Willis North America, Inc. in A-4713-11 (K&L Gates, LLP, attorneys; Anthony P. La Rocco, of counsel; Ms. Korgul and Matthew S. Sachs, on the brief). Ryan Milun argued the cause for respondent Simp-son & Brown, Inc. in A-4713-11 (The Killian Firm, P.C., attorneys; Mr. Milun, [*3] on the brief). JUDGES: Before Judges Sabatino, Simonelli, and Guadagno. The opinion of the court was delivered by SABATINO, P.J.A.D. OPINION BY: SABATINO OPINION
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This mammoth set of consolidated appeals and cross-appeals involves over a dozen parties. The matter concerns both a wrongful death case against multiple defendants tried over four months before a jury, and a host of related insurance coverage issues decided by the trial court.
The litigation stems from a workplace accident on a construction site, in which a subcontractor's em-ployee was struck on the head by an unsecured metal ladder and became paralyzed. Following that traumatic injury, the worker received negligent med-ical treatment, including the deprivation of sufficient oxygen, causing him brain damage. He died three years later.
The worker's estate filed suit against the job site's owner that served as the project's general con-tractor, several of the worker's post-accident medical providers, and various other parties. The owner filed separate claims for contractual indemnification against both the worker's own employer and against an installation subcontractor, alleging that each of them bore [*4] responsibility for the hazard posed by the unsecured ladder. Additionally, several insur-ers and an insurance broker whose policies were im-plicated by the accident sought coverage rulings.
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Page 3 2015 N.J. Super. Unpub. LEXIS 1938, *
Because the exclusive remedy provision within the worker's compensation statute, N.J.S.A. 34:15-8, does not preclude a negligent employer's liability for contractual indemnification, the trial court allowed counsel for decedent's employer to present evidence and arguments at the jury trial. However, the court did not allow the jury to consider allocating any per-centage of fault to the employer on the verdict form, despite the requests of several parties, including the employer itself.
The jurors returned a multi-million-dollar verdict, which they allocated in percentages among the owner, the installation subcontractor, and one of the defendant medical providers. The trial court sepa-rately disposed of the related insurance coverage is-sues without conducting any evidentiary proceed-ings.
Among the myriad issues presented to us, we have been asked to consider questions relating to whether, and to what extent, an injured worker's em-ployer may participate in a jury trial of an underlying tort action, in a situation [*5] where the factual de-terminations could trigger the employer's duty to in-demnify a defendant in the tort case.
We hold that the trial court erred here in allowing the decedent's employer to participate in the jury trial while simultaneously disallowing the jury from ascer-taining that employer's percentage of fault, if any, on the verdict form. In light of that error, we remand this matter to the trial court to consider the need for fur-ther proceedings relating to such potential allocation of fault to the decedent's employer.
The need for such further proceedings in this case will depend upon whether the job site owner is continuing to press its claims of contractual indemni-fication against both the decedent's employer and the installation subcontractor. If so, additional fact-finding might be required to sort out the priority or division of the respective payment obligations of the two subcontractors as co-indemnitors. Such supple-mental fact-finding shall not, however, disturb the verdict already obtained by plaintiffs. We reject the installation subcontractor's demand for a new jury trial on all issues, particularly since that appellant failed to object at trial to the employer's omission [*6] from the verdict form.
We also remand this matter for the trial court's further consideration of certain discrete insurance coverage issues.
In all other respects, we affirm the trial court's rulings and the final judgment predicated on the ju-ry's verdict, thus denying relief on the plethora of
other issues raised on appeal in the parties' twenty-three briefs.2
2 We were informed several days ago that Femco recently reached a settlement with plaintiffs, a development which resolves some of the issues raised on appeal.
I.
We derive the following pertinent facts from the evidence adduced during the lengthy jury trial. The trial spanned nearly forty intermittent days between October 2011 and January 2012. We describe the facts in considerable detail because those details are legally significant to many of the assorted issues of liability, indemnification, and insurance coverage raised on appeal. The Job Site and the Parties' Relationships
The decedent, Jack D'Avila, was a laborer em-ployed by third-party defendant Simpson & Brown, Inc. ("S&B"), a subcontractor on a job site in Jersey City. The project involved the installation of a 700-foot "mega shredder" at the facility of defendant, Hugo Neu [*7] Corporation.3
3 The pleadings also identify affiliated com-panies of this defendant, specifically Hugo Neu Schnitzer East and Sims Hugo Neu Cor-poration. We shall refer to these entities col-lectively as "Hugo Neu."
Hugo Neu is a metal recycling company. At the Jersey City location, Hugo Neu processed scrap metal and loaded it onto ships. The mega shredder being installed on the site required a concrete foun-dation, referred to in the record as the "mill base" or "shredder base." The shredder's motor required a separate concrete foundation, referred to in the rec-ord as the "motor base."
Although Hugo Neu disputed at trial its actual role concerning the project, the proofs reflect that the company served as its own general contractor. Hugo Neu obtained the necessary permits, contracted with a variety of companies to perform the necessary work, created a master schedule, and exercised "general supervisory authority" over the project.
Hugo Neu contracted with decedent's employer, S&B, to serve as a subcontractor for concrete foun-dations and structural work. Hugo Neu separately ar-ranged for another subcontractor, defendant Femco Machine Company ("Femco"), to assemble and in-stall the shredder. Hugo [*8] Neu had worked with
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both S&B and Femco in the past. Another subcon-tractor, defendant Lynch, Giulano & Associates, P.A. ("LGA"), was hired to perform surveying work on site.
Hugo Neu's contract with S&B provided, among other things, that S&B "shall be responsible for initi-ating, maintaining and supervising all safety precau-tions and programs in connection with the perfor-mance of [S&B's contract]." In addition, the contract required S&B to participate in certain specified safety training activities.
With respect to the safety of ladders in particular, a provision within the S&B contract, titled "MINIMUM SAFETY REQUIREMENTS for CONTRACT WORK," specifically stated, in pertinent part, that "In use, the ladders shall be properly fastened and set to prevent movement."
S&B's project superintendent, Michael Byrne, testified that the firm's employees received a safety orientation when they were hired. According to Byrne, he personally conducted safety checks on site on a daily basis and whenever conditions changed "markedly." He also presented weekly "toolbox talks" on a variety of safety issues.
S&B used several types of ladders at the project site. According to Byrne, S&B visually inspected those [*9] ladders before each use. Byrne testified that it was S&B's policy that all ladders had to be "tied off and secured" while in use, so as to ensure they would not fall. He explained that S&B had welded clips to the tops of both the motor base and the mill base, so that ladders could be tied to them.
Despite Byrne's assertions, one of S&B's work-ers on the job site, Joao Rodriguez, testified that he did not know whether S&B had a ladder safety policy, and that he himself did not have a practice of tying off extension ladders when he used them.
Hugo Neu's contract with Femco likewise in-cluded language regarding safety. The contract re-quired that Femco abide by Hugo Neu's "safety and environmental rules and regulations[,]" and that Femco inform its employees and subcontractors of those requirements before arriving at Hugo Neu's fa-cility. Hugo Neu was authorized under the contract to request a copy of Femco's safety and training manuals, and also to request documentation show-ing that Femco's personnel had been properly trained.
The Femco employees who worked on the mega shredder project on the job site included a fore-man/team leader, Gern Wazhob, field service tech-nicians Phillip Buffone, John [*10] Padchin, Greg-ory Huey, and Joshua Wazelle; and a self-employed
contractor named Andrew Bowser. Jerry McAdoo, Femco's sales representative, testified that he met with some of these Femco employees before the project began. McAdoo claimed that he advised them to work in a safe manner, including telling them to tie off ladders. However, in their own testimony, most of the Femco field workers did not recall attend-ing any safety orientation meeting before starting work.
Although Femco contended that Wazhob was in charge of safety on the site, that was not Wazhob's own understanding. Moreover, Buffone and Padchin testified that they were unaware of any Femco em-ployee being designated as responsible for on-site safety.
The record shows that Femco did have regular safety (or "toolbox") meetings, and that it issued weekly informational documents, which employees were supposedly obligated to read and sign. Femco distributed its written policy regarding ladder safety in February 2005, several months before decedent's accident. The policy required that straight ladders be tied or held at the bottom, and that they be tied down "as close to the support point as possible."
Buffone and Padchin did not [*11] recall ever reviewing or signing any document specifically relat-ing to ladder safety, but they acknowledged their sig-natures appearing on the February 2005 safety pol-icy as did Wazelle and Wazhob. The Femco field ser-vice employees, except for Wazelle, admitted that it was standard procedure to secure ladders while in use as close to the support point as possible, so as to keep the ladder from moving. However, Padchin also testified that if he saw an unsecured ladder he would not secure it.
Apart from its agreements with the various sub-contractors working on the project, Hugo Neu itself had an "Environmental Health & Safety New Em-ployee Orientation" policy. That policy included a similar requirement that ladders be secured at the top and bottom. Hugo Neu held training sessions on its safety policies, both for new employees and at regular meetings.
Hugo Neu issued documents entitled "contractor safety rules", and "SPECIAL CONDITIONS FOR FIELD LABOR". These provisions required that con-tractors have a safety representative attend a Hugo Neu "safety indoctrination meeting" before starting work; hold "safety instruction courses" for all employ-ees, as well as "[w]eekly safety meetings with em-ployees;" [*12] and secure ladders.
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The record is unclear as to whether Hugo Neu actually enforced these safety provisions by holding safety orientation meetings and providing its safety rules to the contractors before work began. At most, Hugo Neu's on-site mechanical plant engineer, Fran-cis Salvo, recalled having separate meetings with each of the contractors, during which he claimed the parties reviewed the contracts "line by line," which would have included the safety-related provisions.
The record essentially reflects that Hugo Neu left safety for the project on a day-to-day basis primarily to its subcontractors. Hugo Neu's safety representa-tive on site, Scott Falcowitz, did conduct weekly safety meetings. Salvo claimed that Falcowitz made two rounds per day through the property. However, he stated that he viewed the mega shredder project only because he "had been asked to look at the pro-ject from a picture perspective because they wanted to chart progress". Falcowitz did not view the project specifically looking for safety issues, although if he happened to see something of concern from a safety perspective, including an unsecured ladder, he would have spoken with Salvo about it. The Decedent's [*13] Accident
The accident occurred on May 18, 2005. The trial testimony centered around determining who had placed ladders against the motor base in the days leading up to the accident, a time frame when Femco was preparing for installation of the shredder. 1. Placement of the Ladder
According to the deposition testimony of LGA employees Steven Maloney and Thomas Pianetti, they verified the existing center line of the motor base two days before the accident. The center line had been marked by S&B based upon LGA's survey-ing benchmarks. The LGA employees ensured that the motor base lined up with the mill base. They also checked the elevation of the plates on the motor base, which had been installed in the concrete by S&B.
To accomplish these tasks, Pianetti climbed a ladder to the top of the motor base. He and Maloney recalled that the ladder was already in place when they arrived, and that it seemed secure. However, they could not recall whether the ladder had been tied off. They stated that they left the ladder in place when they were finished with their work. Thereafter, LGA was not on the site on either May 17 or 18, the latter being the day of the accident.
Salvo, Hugo Neu's plant engineer, [*14] re-called using a ladder to ascend the motor base a day
or two before the accident. He did so in order to per-form a final inspection of the site, in preparation for the motor being set on top of it. S&B employees were also then on the motor base with him. Salvo recalled that they had to clean some concrete off of the base plates. Salvo also recalled that Femco employees went up after him, after S&B had completed its clean-up, in order to prepare the bolts for setting the motor base. Femco's employee Buffone, however, did not believe Femco had performed that particular work until after the accident.
Salvo recalled that the ladder he ascended had been secured at the top with wire. The wire was tied to a metal stud on top of the motor base. However, other evidence reflects that at some point between May 16 and May 18, the blue clips that S&B had in-stalled on the top of the motor base, to which ladders had been secured, had been removed.
Buffone's account differed from that of Salvo. Buffone testified that, on the afternoon of May 16, he first ascended a ladder to the top of the mill base and found no center line marked. According to Buffone, he then ascended a ladder to the top of the motor [*15] base, in order to see if there was a center line that could be transferred to the mill base.
At trial, Buffone did not recall whether he set up the ladder against the motor base, or whether it was already there when he arrived. However, earlier at his deposition, Buffone testified that he had in fact erected the ladder. He stated that he found the lad-der lying in a corridor between the motor base and the mill base. He did not ask permission to use it, since it was commonplace for contractors to share equipment on the work site.
Buffone admitted at his deposition and at trial that he did not secure the ladder to the mill base, or to the motor base, and that he did not remove the ladders from the mill base or motor base when he was finished with them. Rather, he recalled that he left them there, unsecured. He explained that there had been no center lines on the top of the motor base or the mill base, and that he was irritated by and "pre-occupied with" their absence.
Substantial questions were raised at trial about the credibility of Buffone's testimony concerning the ladders. Fundamentally, it was unclear why Buffone would have been angered by the need to re-establish center lines for Femco's [*16] purposes. Byrne tes-tified that S&B marked center lines for its own pur-poses: for example, in order to know where to place "anchor bolts" and "embedded structures". However, once the concrete was poured and cast, those center lines would be "buried underneath the concrete."
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S&B did not set center lines for Femco's purposes. Moreover, Femco regularly borrowed S&B's equip-ment in order to "transfer lines" from S&B's marks.
Buffone's testimony was contradicted by the tes-timony of LGA's employees that they had checked the center lines earlier in the day on May 16. There-fore, assuming that were true, Buffone should have observed center lines, if he had looked for them that same afternoon. Buffone's work report for May 16 did not reflect any work performed checking center lines, on either the mill base or the motor base. Buffone's credibility was further undermined by the testimony of the LGA employees and Salvo recalling they each had climbed up secured, not unsecured, ladders placed against the motor base.
Photographs from the morning of May 16 appear to show a ladder already erected against the motor base, and placed against one of S&B's blue clips. Buffone could not recall whether the ladder [*17] shown in those photos was the one that he used when he arrived in the afternoon. However, he acknowledged that he would not have erected a sec-ond ladder there if one was already there in place. There were also questions raised as to whether the motor base actually required center lines for Femco's purposes in setting the motor on top. Evidently, only the mill base needed a center line marked for pur-poses of "landing" the shredder. However, there was also testimony that, since the motor base was at a higher elevation than the mill base, it was a location from which one could transfer a center line to the mill base, which is what Buffone testified he was plan-ning to do.
Buffone testified that the following day, May 17, he ascended to the top of the mill base in order to clean the top of the base and lay out center lines. He believed that S&B assisted in this process.
Buffone did not recall putting a ladder against the motor base on May 17, or any time after May 16, for that matter. However, he testified that in that time frame before the accident, he observed people on top of the motor base, who were using a surveyor's transit. Buffone believed them to be S&B employees, but he did not [*18] know for sure, and he did not know how they had ascended or descended from the motor base.
On May 18, the date of the accident, Femco crew members were "landing" components of the mega shredder on the mill base. They denied having per-formed any work on the motor base that day.
S&B employees were not involved in "landing" the shredder that day. Rather, on May 18, S&B em-ployees were working in two locations: one location at the "in-feed", described as "a couple of hundred feet west of" the mill base; and a second location, where decedent was working, about eighteen-to-twenty feet away from the "far side" of the motor base, furthest from the mill base. At decedent's loca-tion, S&B employees were working at ground level, setting up forms in which concrete was to be poured in connection with a structure that would house the motor base and motor.
Byrne recalled that S&B's work on the mill and motor bases had been completed, and inspected by LGA, a couple of days earlier. Byrne considered those locations instead to be Femco's work areas for the day. According to Byrne, S&B employees would not even have been walking in the corridor between the two bases given the nature of Femco's work (picking [*19] up thirty-ton pieces of steel over the areas), and because there was "backfill in the cen-ter," making the corridor difficult to traverse.
Photographs of the job site from May 18 show no ladders propped against the motor base in the morn-ing. However, a photos taken at 10:49 a.m. that day shows a ladder against the mill base, which was se-cured at the top. Buffone testified that he erected the ladder, and that Femco employees used the ladder in order to go to the top of the mill base.
Photographs taken in the afternoon on May 18 show ladders erected against both the mill base and the motor base, with their feet placed in the corridor between the mill base and the motor base. According to Salvo, the ladder against the motor base had been secured at the bottom. However, it was not secured at the top. Photos from that day show no blue clips at the top of the motor base to which the ladder could have been secured. Buffone denied erecting that lad-der. 2. The Ladder's Impact with Decedent
At approximately 3:45 p.m. on May 18, a ladder that had been leaning against the motor base fell and hit decedent on the head. Many of the witnesses agreed that the ladder most likely belonged to S&B, because [*20] Femco did not have ladders that long, and Hugo Neu did not provide ladders to the contractors.
Femco's employee John Padchin observed the accident while climbing the ladder placed against the mill base. He testified that he heard a "scraping" noise and observed the ladder on the motor base move as a strong "gust of wind" came through. Some
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witnesses recalled that the weather had been nice that day, and not particularly windy. However, others recalled it being a windy day, and most agreed that the site tended to be windy due to its location along the Hudson River.
S&B prepared an incident report, simply noting that the accident had occurred and the nature of the accident. Nearly one year later, an investigator for S&B prepared a somewhat more detailed report in-dicating that decedent had been working in "a shal-low trench performing foundation work" at the time of the accident. There was a "taller foundation next to the trench." Leaning up against the foundation was a twenty-foot extension ladder, which was not being used.
According to the report, the ladder belonged to S&B and had been used by S&B personnel the pre-vious day. The investigator noted that "[t]he ladder was tied off at the bottom, [*21] but was not tied off at the top, since the workers the previous day had finished with the ladder and untied it before they came down." The report reflects that S&B's project superintendent told the investigator it was "not a par-ticularly windy day, but for some reason the ladder slipped from its position and came down on [dece-dent]," and "[t]he ladder was still tied at the bottom when it fell." The Liability Experts' Competing Opinions 1. Gallagher
Plaintiffs' liability expert, Vincent A. Gallagher, addressed issues of construction safety and related Occupational Health and Safety Administration ("OSHA") policies and procedures. He testified that with respect to extension ladders leaning against structures, it was industry practice, and Femco's own policy, to tie them at the top in order to prevent them from falling. According to Gallagher, it was important to tie ladders at the top "[b]ecause they can fall over, either while you are climbing them or the wind can blow them over."
Gallagher conceded that the standard on ladder safety published by OSHA did not specifically require that an extension ladder be tied off, unless the ladder was placed on a slippery surface. However, he stated that this standard [*22] was widely acknowl-edged by safety professionals to be deficient, and in its other publications OSHA had instructed people to tie off ladders.
Gallagher opined that Femco had violated "cus-tomary safety industry practice" because its employ-ees worked around an unsecured ladder on May 18.
He maintained that Femco's conduct in failing to identify and rectify the unsecured ladder hazard on May 18 was a cause of decedent's accident. He added that if Buffone had actually erected the unse-cured ladder on May 18, then his employer Femco would be responsible for creating the hazard that led to the accident.
Gallagher further opined that Hugo Neu was separately responsible for failing to identify the unse-cured ladder and failing to eliminate the hazard, and these failures also were a cause of decedent's injury. In this regard, Gallagher testified that, as the general contractor and owner of the property, Hugo Neu was responsible for the work performed by its contrac-tors, including their safety. He further noted that Hugo Neu was responsible for keeping S&B employ-ees away from the area in which the shredder parts were being landed.
Additionally, Gallagher opined that S&B had a responsibility to identify [*23] and eliminate the un-secured ladder, and to protect its employees from hazardous working conditions. However, Gallagher could not say whether S&B breached that duty be-cause he did not have any information showing that an S&B employee was in a position to have viewed the unsecured ladder. 2. Carlsen
Timothy Carlsen, Hugo Neu's expert in profes-sional engineering and construction, offered some-what different opinions. Carlsen pointed to evidence that the ladder that fell belonged to S&B, and that it had been erected on the date of the accident, at some time between 10:49 a.m. and 12:24 p.m. Carl-sen could not state with certainty who, if anyone, had erected the ladder, who had used it, or who had been on top of the motor base on the date of the accident. Carlsen did eliminate LGA personnel as being re-sponsible, since LGA was not on site on the date of the accident, or the day before. Only two entities had work to do on the motor base: Femco, which had "to prepare the top of the motor base for the receiving of the motor which would take place a couple of days later", and possibly double-check center lines; and S&B, which had to "set the anchor bolts and the steel plates for the motor[.]" Presumably, [*24] however, S&B's work would have been done as the concrete was poured. Thus, given Femco's work on May 18, and its possible need to double-check center lines, Carlsen felt it was more likely than not that Femco had erected the ladder.
Carlsen concluded that the ladder had been se-cured at the base, as testified to by Salvo. He could
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not state whether it had been secured at the top. Given the reported windspeeds on the date of the accident, as well as the force necessary to "topple" the ladder, Carlsen opined that the wind that day was "insufficient to cause [the] ladder to move." Never-theless, according to Carlsen, it remained possible, albeit unlikely, that the ladder's fall had been caused by a gust of wind. In Carlsen's opinion, a likely sce-nario was that contact with a tag line had caused the ladder to fall.
Analyzing the respective functions on the job site, Carlsen opined that both S&B and Femco had duties to provide their employees with a safe work location. He agreed that Femco in particular had a duty to refrain from creating a hazard that endan-gered other employees. However, in Carlsen's opin-ion, decedent was working "not in an unsafe loca-tion" at the time of the accident.
As to [*25] Hugo Neu, Carlsen acknowledged that it was Hugo Neu's obligation, as the controlling employer, to inspect for hazards. According to Carl-sen, that standard only required Hugo Neu to walk the site once per day, and Hugo Neu met that stand-ard. 3. Coniglio
John Coniglio, S&B's expert in construction safety, testified that "the cause of the accident was an improperly positioned ladder that was not properly secured and tied down." Coniglio believed that Femco was responsible for the accident because (1) one of its employees most likely erected the ladder, since Femco employees were the only people work-ing in the area where it was erected; and (2) regard-less of who erected the ladder, Femco's employees allowed an unsecured ladder to exist in their work area, thus making the hazard Femco's responsibility.
Coniglio further opined that Hugo Neu was re-sponsible for overall site safety as the property owner and construction manager. However, he acknowledged that Hugo Neu could not have been expected to be present at all times in order to ob-serve all safety violations. Coniglio further conceded that Hugo Neu could not have been expected to identify and remove the unsecured ladder in the short amount [*26] of time that it was up on the date of the accident.
Finally, Coniglio concluded that S&B did not vio-late any safety standards, and had no responsibility for the accident. As Coniglio phrased it, decedent was simply "in the wrong place at the wrong time." It was immaterial to Coniglio that the ladder may have
been owned by S&B, since the only thing unsafe about the ladder was that it was left unsecured.
Femco did not call a liability expert at trial. In-stead, its counsel made arguments in summation that criticized various opinions of the testifying ex-perts. Based upon the factual record, Femco's attor-ney argued that S&B and, to a lesser degree, Hugo Neu were to blame for the ladder accident and not Femco. Decedent's Injuries and Medical Treatment
After he was struck by the ladder, decedent fell down, and various workers on the construction site told him to remain where he was until medical help arrived. He was conscious and communicating, and apologized for getting hurt. The remaining workers returned to their work.
Decedent was transported to defendant Jersey City Medical Center ("JCMC") for medical treatment. In the emergency room, he was able to speak and to move his hands, feet, arms, [*27] and legs, albeit with difficulty, and with some loss of feeling.
Decedent had suffered spinal fractures at disc levels C2 and C7. At level C3-C4, he had suffered bruising and swelling of the spinal cord and a bulging disc. These injuries were causing neurological dam-age, including partial paralysis, with the right side more affected than the left. By the time decedent was seen by a neurosurgeon, he could not move his right hand or leg.
The neurosurgeon performed a discectomy, re-moving the bulging disk at C3-C4 to prevent possible worsening of the cord compression. He also put in a plate at C3-C4, to stabilize decedent's spine at that level. The medical records show no reported compli-cations with the surgery.
Post-surgery, decedent was sent to the surgical Intensive Care Unit, where he was under the super-vision of defendant Patricia A. Schrader, M.D., a trauma surgeon who also was director of the unit. Defendant Christine Pangilinan, R.N., was dece-dent's nurse from 7:00 a.m. to 7:00 p.m. on May 19. Defendant Conchita Garcia, R.N., was his nurse from 7:00 p.m. on May 19 to 7:00 a.m. on May 20. Defendant Amy R. Cutshall, R.N., was his nurse from 7:00 a.m. to 7:00 p.m. on May 20.
At the start [*28] of Nurse Pangilinan's shift, the doctor's orders were for decedent to receive nothing by mouth ("NPO"). However, decedent was later al-lowed ice chips only. At 10:15 a.m. on May 19, Dr. Schrader evaluated decedent and ordered that he could have clear liquids and one can of a nutritional
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supplement three times per day. Dr. Schrader also ordered that decedent be advanced to regular food "as tolerated."
As to the paralysis, Dr. Schrader's notes from the May 19 evaluation reflect that decedent was able to flex both elbows, as well as his left foot and left hip. However, decedent was not able to flex his right foot or right hip.
On the morning of May 20, Dr. Schrader visited with decedent and spoke with Nurse Cutshall about his condition. Dr. Schrader noted that decedent's spi-nal cord injury appeared to be progressing to quad-riplegia, albeit incomplete. She also noted that dece-dent had lost the ability to move his fingers in order to utilize the patient-controlled analgesia device (the "PCA").
Dr. Schrader had concerns about decedent pos-sibly experiencing respiratory difficulty, so she or-dered a baseline measure of his arterial blood gas, and that he be observed for "increased accessory muscle [*29] use" when breathing, which would be an early sign of respiratory distress. She did not con-sider intubating decedent at that time, however, be-cause he was breathing on his own and had a good cough.
Dr. Schrader stated that she would not intubate a patient unless it was necessary for the patient to breathe, or to protect an unconscious person's air-way. She explained that there were risks to intuba-tion, including possibly worsening the spinal cord in-jury with the movements necessary to achieve intu-bation, as well as infection or pneumonia.
Nevertheless, to minimize the risk of aspiration, Dr. Schrader declared decedent NPO based upon swallowing difficulties reported and demonstrated by Nurse Cutshall. Dr. Schrader also ordered a swal-lowing evaluation, and that a feeding tube be made available for possible placement into the patient.
At 9:55 a.m., about forty minutes after Dr. Schrader had completed rounds with decedent, he experienced respiratory distress. Nurse Cutshall heard him coughing, so she went to check on him. Concerned that he may be choking, the nurse suc-tioned his airway, but it did not help. She also called for the doctor, and Dr. Schrader returned to dece-dent's room.
At approximately [*30] 10:00 a.m., decedent's oxygen saturation was down to 31 percent, whereas most people are at 97 to 100 percent, and he had a heart rate of 45 beats per minute, indicating sinus bradycardia. Dr. Schrader ordered that a call be placed for anesthesia service to intubate decedent,
and also prepared to intubate him herself if neces-sary.
At 10:05 a.m., a nurse anesthetist was able to intubate decedent on an emergent basis. A note writ-ten by Dr. Schrader indicated that "blood tinged, beige material" was suctioned from decedent's air-way at the time of intubation. Dr. Schrader testified at her deposition that there were different possible sources of the beige material, including mucous from the lung.
On manual ventilation, decedent's oxygen satu-ration was brought up to 100 percent, and his heart rate brought up to 118 beats per minute. However, he had suffered five-to-seven minutes of oxygen de-saturation, resulting in "anoxic brain injury." Decedent's Remaining Life and Demise
Decedent spent the rest of his life in various healthcare facilities, and he remained on a ventilator except for one week. He died in July 2008, at age fifty-one, after he suffered a downturn and his family decided to discontinue [*31] the ventilator.
In their testimony, decedent's wife and children described their losses due to his passing. They pre-sented expert testimony on damages, which was re-butted by experts presented by S&B.
The medical experts disagreed as to whether de-cedent's respiratory distress occurred due to dam-age to his phrenic nerves, caused by his spinal cord injury, or due to aspiration. They also disagreed as to whether the nurses should have advised Dr. Schrader sooner about decedent's difficulties with swallowing and operating the PCA, and whether Nurse Cutshall had erred by demonstrating dece-dent's swallowing difficulties during Dr. Schrader's rounds, thereby adding more fluids and increasing the risk of aspiration. The experts further disagreed as to whether Dr. Schrader had acted appropriately in not intubating decedent until he suffered the res-piratory event, or whether she should have electively intubated him earlier, during rounds.
Finally, the medical experts contested whether the initial injury or the period of oxygen desaturation had caused decedent's complete quadriplegia. They specifically differed as to whether the period of oxy-gen desaturation had caused decedent's permanent brain [*32] damage, or whether that damage oc-curred during a later event, when decedent suffered an extremely high fever of over 105 degrees as a re-sult of damage to his central nervous system. II.
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The Tort Action
In March 2007, Tiago D'Avila ("Tiago"), then-guardian for his father Jack D'Avila, and Denise Ro-cha, Jack D'Avila's wife, filed a complaint in the Law Division in the underlying tort litigation. Their com-plaint was amended multiple times. Ultimately, the tort action named as defendants: Hugo Neu; Femco; Riverside Engineering ("Riverside"); LGA; JCMC; Dr. Schrader; Nurse Cutshall; Nurse Pangilinan; Nurse Garcia; and Liberty Surgical Associates ("Liberty Surgical"), one of Dr. Schrader's employers.
Plaintiffs asserted claims of construction negli-gence and medical malpractice, wrongful death, and a loss of consortium claim for Rocha. Riverside was later dismissed from the case on summary judgment, a dismissal that no one contests on appeal.
Defendant Hugo Neu filed a cross-claim against defendant Femco arising out of their contractual re-lationship. Hugo Neu also filed a third-party com-plaint against S&B for contribution and indemnifica-tion, and for breach of contract.
S&B denied liability and [*33] asserted that all claims for contribution were barred by the exclusive remedy provision of the Workers' Compensation Act ("the WCA"), N.J.S.A. 34:15-8. S&B also asserted a counterclaim and cross-claims for contribution and indemnification.
S&B filed a fourth-party complaint against its in-surer, American Home Assurance Company ("Amer-ican Home") and Willis North America, Inc., as suc-cessor in interest to Fleet Insurance Services, LLC ("Willis"). S&B alleged breach of fiduciary duty and negligence against Willis, its insurance broker, for failing to obtain the coverage S&B had requested. S&B also asserted breach of contract and declara-tory judgment claims against American Home, seek-ing primary and non-contributory insurance cover-age for Hugo Neu under its policy. The Declaratory Judgment Coverage Actions
In a related action, Hugo Neu's insurer, Conti-nental Casualty Company ("Continental"), filed a complaint for declaratory judgment against American Home and Femco's insurer, Crum & Forster ("C&F"), seeking a declaration that those two insurance com-panies were responsible for providing coverage for defense and indemnity to Hugo Neu in the underlying litigation.
Both American Home and C&F asserted cross-claims [*34] against each other and counterclaims against Continental. S&B intervened as a defendant
in the coverage action and filed an answer with cross-claims. Pretrial Motions and Proceedings
On February 5, 2010, the trial court ruled on a summary judgment motion filed by Continental. The court issued an oral opinion, ruling that Hugo Neu was an additional insured under both the American Home and C&F policies. In that same ruling, the court consolidated the underlying tort case with the declaratory judgment action. Several days later, the court entered an order granting summary judgment to Continental as to the discrete issue of Hugo Neu's additional insured status, and consolidating the two cases.
After Continental moved again for summary judgment on different grounds, the court4 issued an oral opinion on June 9, 2010, ruling that both Ameri-can Home and C&F were responsible for providing primary, non-contributing insurance to Hugo Neu.
4 A different judge ("the second judge") heard this particular motion.
On July 23, 2010, the second judge ruled on sev-eral other pretrial motions. As it relates to the present appeals, the court: (1) issued orders consistent with the June 9, 2010 rulings granting summary [*35] judgment to Continental against American Home and C&F, requiring them to "provide primary and non-contributing insurance coverage (both defense and indemnification) up to the full limits of coverage called for" pursuant to the construction contracts be-tween Hugo Neu and, respectively, S&B and Femco; and (2) dismissed claims against S&B, except that it required S&B to provide "a complete defense and full indemnification" to Hugo Neu pursuant to their con-tract, "so long as [Hugo Neu] was not found to be solely responsible for Jack D'Avila's accident[,]" and providing "that this contractual indemnification provi-sion between Hugo [Neu] and [S&B] shall not be trig-gered until the insurance coverage provided by [S&B] has been exhausted." American Home and C&F moved for reconsideration, which was denied.
In the meantime, Continental moved for the ap-pointment of defense counsel and to compel Ameri-can Home and C&F to pay Hugo Neu's defense fees and expenses. By order dated January 7, 2011, the court denied that motion without prejudice.
After pretrial conferences, a third successive judge who was assigned to this case ("the trial judge") heard and decided various motions in limine. Among other [*36] things, the judge granted plain-tiffs' application to bar argument that decedent was
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comparatively negligent and denied a motion to pre-clude S&B from participating in the litigation. The judge reserved decision on the question of whether the jury could consider S&B's negligence. The Trial and The Verdict
Before the trial began, plaintiffs' counsel re-newed his objection to the court allowing the jury to consider the negligence of S&B. The court clarified that the parties could refer to S&B's negligence in their opening statements to the jury, as it related to the question of whether the negligence of the "con-struction defendants" (i.e., Hugo Neu, Femco, and LGA) was a proximate cause of decedent's injuries, but the jury would not be asked to assess the com-parative negligence of S&B on the verdict sheet. Maintaining its prior ruling, the court denied a motion by Dr. Schrader and JCMC to disallow S&B's partic-ipation at trial.
At the close of evidence, the parties made a va-riety of motions, including motions for directed ver-dict, which the court denied. The court also again considered whether S&B should be placed on the verdict sheet, and determined that it should not. S&B renewed its motion [*37] for a directed verdict, which the court denied.
The jury found that Hugo Neu and Femco were each negligent, and that their negligence was a prox-imate cause of decedent's injury. The jury found no negligence on the part of LGA. With respect to the job site accident, the jury allocated 75% liability to Femco and 25% liability to Hugo Neu.
As for the medical defendants, the jury con-cluded that Dr. Schrader, Nurse Cutshall, and Nurse Garcia were negligent. However, the jury also found that only Dr. Schrader's negligence had both in-creased the risk of harm posed by decedent's pre-existing condition, and had been a substantial factor in causing his ultimate injury. The jury concluded that Nurse Cutshall's and Nurse Garcia's negligence had increased the risk of harm, but had not been a sub-stantial factor in causing decedent's ultimate injury. The jury found no negligence on the part of Nurse Pangilinan.
Finally, the jury specifically found that 77% of de-cedent's ultimate injury would have occurred even if the medical treatment had been proper. Thus, it as-sessed Dr. Schrader as the cause of 23% of dece-dent's injury.
The net effect of these determinations, as molded by the court, was to hold Femco [*38]
57.75% liable for the judgment, Hugo Neu 19.25% liable, and Dr. Schrader 23% liable.
As to damages, the jury awarded $2,249,668 in medical expenses, $152,196 in lost income, and $3,800,000 in pain, suffering, disability, impairment, and loss of enjoyment of life. Decedent's wife (Ro-cha) was awarded: $50,000 for the loss of consor-tium; $54,397 in past losses; and $334,150 in future losses. Decedent's children (daughter Tienne and son Tiago) were each awarded: $49,417 in past losses and $303,559 in future losses.
Finally, the jury concluded that Hugo Neu and Femco had not proven that Dr. Schrader's negli-gence was an intervening, superseding cause of de-cedent's ultimate harm. Post-Trial Motions
After several parties filed post-trial motions, the trial judge issued a written letter opinion dated April 12, 2012. In that decision, the judge reaffirmed the pretrial rulings that obligated American Home and C&F to provide Hugo Neu with primary, non-contrib-uting insurance, and required those insurers to pay the judgment against Hugo Neu. The judge also de-nied Femco's motions to dismiss Hugo Neu's claim against it for contractual indemnification, and further denied Femco's motion for judgment notwithstanding [*39] the verdict or, alternatively, a new trial.
The judge further denied Dr. Schrader's motion to mold the verdict so that only the so-called "con-struction defendants" the jury had found to be at fault (i.e., Hugo Neu and Femco) were liable. In addition, the judge required Femco to indemnify Hugo Neu pursuant to their contract; and suspended prejudg-ment interest on two-thirds of the award for medical expenses. The Final Judgment, As Amended
The court entered an initial final judgment, in ac-cordance with the verdict and its post-trial rulings, and entered orders on the post-trial motions, con-sistent with its written opinion. Pursuant to the judg-ment, the total award, with prejudgment interest, amounted to $8,534,726.27.
Meanwhile, the court granted Continental's mo-tion for payment of interim defense fees and ex-penses, which was opposed by C&F and American Home.
On June 11, 2012, the court entered an amended judgment, adding modest taxed costs of $1,230, increasing the aggregate judgment to $8,535,956.27, with $4,929,514.75 allocated to
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Femco, $1,643,171.58 allocated to Hugo Neu, and $1,963,269.94 allocated jointly to Dr. Schrader, Lib-erty Surgical, and JCMC.
The trial court thereafter entered [*40] a second amended judgment, requiring American Home and C&F to provide primary and non-contributory cover-age for the judgment against Hugo Neu, and requir-ing C&F to provide primary and non-contributory cov-erage for the judgment against Femco. The Myriad Appeals
The trial court stayed the judgment, conditioned upon the posting of a supersedeas bond. Appeals were subsequently filed by, respectively: plaintiffs, Femco, S&B, C&F, and American Home. Plaintiffs subsequently settled with Dr. Schrader and her em-ployers, Liberty Surgical and JCMC. III.
Femco, which bears the largest share of liability under the jury's verdict, raises on appeal several in-terrelated issues of negligence and contractual in-demnification.
Specifically, Femco argues that the trial court erred by: (1) allowing decedent's employer, S&B, to participate in the trial while disallowing the jury to consider S&B's alleged negligence; and (2) ruling that Femco was obligated to indemnify Hugo Neu for Hugo Neu's own negligence. Femco further argues that the jury's apportionment of fault against it was against the weight of the evidence. The remaining is-sues raised on appeal by Femco were resolved through its recent settlement with [*41] plaintiffs.
Meanwhile, the issues raised by S&B in its cross-appeal include an argument that the trial court erred by denying S&B's motion for partial summary judg-ment, and holding that S&B is liable to Hugo Neu for contractual indemnification.
The first of these issues -- concerning the appro-priate role of decedent's employer in the jury trial -- raises important questions of law and procedure about the employer's inclusion or omission from the verdict form. We devote the following analysis in this published portion of our opinion to that thorny issue.
Because these issues concerning the employ-er's role at trial are closely intertwined with the issues of negligence liability and contractual indemnification that also have been raised, we include them within our analysis in this section of the opinion as well. A.
The WCA, N.J.S.A. 34:15-1 to -142, "represents the bargain that was struck between employers and employees concerning workplace injuries, whereby employers shoulder the expense of workers' injuries arising out of the performance of work duties." Basil v. Wolf, 193 N.J. 38, 53, 935 A.2d 1154 (2007). The WCA "provide[s] a method of compensation for the injury or death of an employee, irrespective of the fault of the employer or contributory negligence and assumption [*42] of risk of the employee." Harris v. Branin Transp., Inc., 312 N.J. Super. 38, 46, 711 A.2d 331 (App. Div.), certif. denied, 156 N.J. 408, 719 A.2d 640 (1998).
As part of the bargain struck by the Legislature in the WCA, N.J.S.A. 34:15-8 directs that an em-ployer may not be sued by an employee or an em-ployee's surviving relatives for negligence that caused injury or death to the employee. Instead, workers' compensation is the exclusive remedy, ab-sent proof of an intentional wrong. Ramos v. Brown-ing Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 183, 510 A.2d 1152 (1986); McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 489-90, 17 A.3d 816 (App. Div. 2011). Thus, plaintiffs in this case could not proceed with a claim against S&B, decedent's employer.
Case law establishes that the WCA does not, however, preclude an injured employee from pursu-ing claims against third-party tortfeasors. Instead, "an employee retains the right to pursue available common-law remedies for liability against third-par-ties, so long as recoveries are not duplicated." McDaniel, supra, 419 N.J. Super. at 491 (citing Schweizer v. Elox Div. of Colt Indus., 70 N.J. 280, 287-88, 359 A.2d 857 (1976)). Thus, plaintiffs could and did pursue claims against alleged other tortfea-sors, including Femco and Hugo Neu.
Consistent with the WCA's exclusive remedy proviso, defendants could not seek contribution from S&B under the Joint Tortfeasors Contribution Law ("the JTCL"), N.J.S.A. 2A:53A-1 to -5. "Because the employer cannot be a joint tortfeasor, it is not subject to the provisions of the [JTCL], and a third-party tort-feasor may not obtain contribution [*43] from an employer, no matter what may be the comparative negligence of the third party and the employer." Ra-mos, supra, 103 N.J. at 184; accord Stephenson v. R.A. Jones & Co., 103 N.J. 194, 199, 510 A.2d 1161 (1986); McDaniel, supra, 419 N.J. Super. at 492-93.
Hence, in the context of a plaintiff-employee's negligence claims against other tortfeasors relating to workplace injuries, the jury cannot be asked to ap-portion fault to the plaintiff's own employer, even if
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that seems like "a more equitable manner of present-ing th[e] matter to the jury[.]" Jarrett v. Duncan Thecker Assocs., 175 N.J. Super. 109, 115, 417 A.2d 1064 (Law Div. 1980); accord Stephenson, su-pra, 103 N.J. at 199.
On the other hand, "indemnification of a third party by an employer pursuant to an express con-tract does not disturb the delicate balance struck by the Legislature in the WCA. Nothing in the WCA pre-cludes an employer from assuming a contractual duty to indemnify a third party through an express agreement." Ramos, supra, 103 N.J. at 191. Accord Mautz v. J.P. Patti Co., 298 N.J. Super. 13, 19-21, 688 A.2d 1088 (App. Div.), certif. denied, 151 N.J. 472, 700 A.2d 883 (1997); Port Auth. of N.Y. & N.J. v. Honeywell Protective Serv., Honeywell, Inc., 222 N.J. Super. 11, 19-20, 535 A.2d 974 (App. Div. 1987).
Thus, it was permissible here for Hugo Neu to seek indemnification from S&B, pursuant to their contract, for any of plaintiffs' damages caused by S&B or Hugo Neu. The only legal bar to such a claim would be if Hugo Neu were found 100% liable, be-cause the Legislature has disallowed indemnification agreements imposing liability where the damages in question were caused by the indemnitee's "sole neg-ligence." See N.J.S.A. 2A:40A-1.5
5 N.J.S.A. 2A:40A-1 states:
A covenant, [*44] promise, agreement or understanding in, or in connection with or collat-eral to a contract, agreement or purchase order, relative to the construction, alteration, repair, maintenance, servicing, or se-curity of a building, structure, highway, railroad, appurte-nance and appliance, including moving, demolition, excavating, grading, clearing, site prepara-tion or development of real property connected therewith, purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negli-gence of the promisee, his agents, or employees, is against public policy and is void and unenforceable; provided
that this section shall not affect the validity of any insurance contract, workmen's compensa-tion or agreement issued by an authorized insurer.
[(Emphasis added).]
1.
Published cases in New Jersey have provided mixed signals about how the court should treat an employer named as a third-party defendant, for con-tractual indemnification purposes, in a tort action brought by an injured employee who has demanded a trial by jury. In particular, the published cases have not been uniform concerning [*45] whether the em-ployer should be permitted to participate in the jury trial and, if so, whether and how the employer's al-leged negligence should be addressed in the jury charge and in the verdict form.
In White v. Newark Morning Star Ledger, 245 N.J. Super. 606, 586 A.2d 341 (Law Div. 1990), the plaintiff, an employee of Colin Service Systems, Inc. ("Colin"), was injured while working on the premises of defendant Newark Morning Star Ledger ("Ledger"). Id. at 608. Colin agreed in its contract with Ledger to indemnify Ledger for any injury or death "in any way relating to the performance by Colin . . . [of the contract] . . . except for such injury . . . due to the affirmative negligent acts of Ledger[.]" Id. at 610. The plaintiff sued only Ledger, alleging negligence, and Ledger filed a third-party complaint against Colin for a defense and indemnification. Id. at 609. Colin moved for summary judgment to dis-miss Ledger's third-party complaint, and the Law Di-vision judge denied that motion. Id. at 609, 613.
The Law Division judge in White recognized that if both Ledger and Colin were found to be negligent and to have proximately caused the accident, then "Ledger as the third-party tortfeasor [would] be solely responsible" for the plaintiff's injuries. Id. at 611. Hence, the case required an allocation of fault as be-tween [*46] Ledger, the defendant/indemnitee, and Colin, the third-party defendant/indemnitor. Ibid. The judge further noted that there was a genuine issue, at least on the facts presented in the summary judg-ment record, as to "whether the cause of [the] plain-tiff's injury was solely caused by Ledger's negli-gence." Id. at 613.
The judge in White further concluded that, in de-ciding "how best to allocate the liability as between
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Ledger, to the extent that liability results from Ledg-er's affirmative negligent acts, and Colin[,]"
[t]he logical and most efficient means of achieving that result will be by proceeding as this case is presently structured, with both Ledger and Colin as parties. That will enable the same jury to fix the damages due from Ledger to [the plaintiff], while also fixing the amount due to Ledger pursuant to the indemnification provisions of the [contract].
[Id. at 611.] The judge added that "[a]ny claimed confusion be-tween [the plaintiff's] right to recover from Ledger and Ledger's right to recover from Colin can be avoided by instructions and interrogatories to the jury." Id. at 613. The judge stopped there, however. He did not indicate exactly how the jury should be instructed, or how the special interrogatories [*47] on the verdict form should be framed.
Our own court grappled with similar issues four years later in Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 134, 650 A.2d 808 (App. Div. 1994), aff'd o.b., 143 N.J. 141, 669 A.2d 816 (1996). The plaintiff in Kane was a construction worker who was injured on the job, and he sued Hartz Mountain Industries, Inc. ("Hartz"), the general contractor, and others, alleging negligence. Ibid. The plaintiff's em-ployer, Eastern Steel Erectors ("Eastern"), had agreed to indemnify the steel fabricator with whom it had contracted, Howell Steel, Inc. ("Howell"), "and the 'owner' of the project from any losses or claims arising out of Eastern's work on the project." Id. at 135. Therefore, Howell joined Eastern as a third-party defendant, seeking indemnification pursuant to their contract. Ibid.
The trial judge in Kane allowed Eastern
to "participate" in the jury trial of plaintiff's case [but not present closing arguments], but he ruled that Eastern's negligence would be submitted to the jury only if the jury first returned a ver-dict finding that neither the Hartz de-fendants nor [another defendant] were negligent, and that Howell was 100% negligent. In that event, the court would require the jury to decide whether any negligence was attributable to Eastern,
in order to determine the [*48] en-forceability of the Eastern-Howell in-demnification agreement.
[Id. at 146.] Having been so instructed, the jury returned a no-cause verdict. Id. at 136.
On the plaintiff's appeal in Kane, we concluded there had been error in the jury charge on the effect of Occupational Health and Safety Administration ("OSHA") regulations that warranted reversal. Id. at 140-44. We also found reversible error in the trial court's treatment of Eastern. Id. at 144-47.6 We ob-served that "it was neither necessary nor appropriate to permit Eastern to participate in the presentation of [the] plaintiff's case." Id. at 146. Given that the nature of the allegations in the case involved "industry-wide or regulatory safety standards," we concluded that Eastern "would not be prejudiced by a separate trial on the indemnification issue." Ibid.
6 We rejected the plaintiff's separate con-tentions of error on an evidentiary issue and regarding comparative negligence, see id. at 147-51, which are not pertinent here.
Hence, we ordered in Kane that, on remand, "trial of the third-party claim should be severed, as unquestionably any liability of Howell is not so inde-pendent of the failure of Eastern to abide by safety standards as to bring about the result that Howell might be held [*49] liable without a similar finding of fault on the part of Eastern." Ibid. We also observed that "[i]n any event, Eastern, merely by reason of its status as indemnitor of Howell, should not be ac-corded the advantage of participating at trial. A bare agreement to indemnify does not carry with it the ob-ligation to defend, and it does not provide a right to control the litigation." Id. at 146-47 (emphasis added). In making this observation, we did not ex-pressly repudiate White, a case which we noted ear-lier in the opinion had been relied upon by the trial court. Id. at 136.
Several defendants in Kane, including Hartz, Howell, and Eastern, petitioned for and were granted certification by the Supreme Court. The Court af-firmed our disposition in Kane, "substantially for the reasons expressed" in the published opinion. Kane, supra, 143 N.J. at 142. In doing so, the Court pro-vided no additional commentary and did not shed any further light on the employer-participation ques-tion. Ibid.7
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7 The Court's very recent discussion of other aspects of Kane in Fernandes v. DAR Development Corp., N.J. , 2015 N.J. LEXIS 811 (2015), did not address the em-ployer-participation issue.
A year after Kane, we confronted similar issues of indemnification in Bradford v. Kupper Associates, 283 N.J. Super. 556, 662 A.2d 1004 (App. Div. 1995), certif. denied, 144 N.J. 586, 677 A.2d 759 (1996). In that case, the plaintiffs were employed by Agate Construction [*50] Company ("Agate"). Id. at 563. One plaintiff was killed, and another injured on the job when both inhaled poisonous gas in the Tuck-erton sewer system. Ibid. They sued the Tuckerton Borough Municipal Utilities Authority ("TMUA"), and Kupper Associates ("Kupper"), the project engineer, with Agate named a third-party defendant based upon its contractual duty of indemnification. Ibid. The jury returned a no-cause verdict, which we affirmed on appeal. Id. at 563-64. However, we reversed the court's pretrial ruling that Agate was not required to indemnify Kupper and the TMUA. Id. at 564, 582-86.
Construing the indemnification provision within the construction contract in Bradford, we held that the contract "clearly did not require Agate to indem-nify only for its own negligence," but rather imposed a broader obligation. Id. at 584. On the other hand, we recognized that the agreement did not require Agate to indemnify either TMUA or Kupper "solely based upon their exclusive negligence." Ibid. We also were persuaded that the plaintiffs' claims in Bradford "arose or resulted from" the work, as was required under the contract to trigger such a duty to indemnify. Id. at 585.
Turning to the troublesome question of the ap-propriate role of the plaintiffs' [*51] employer, Agate, in the fact-finding process, we suggested in Bradford that Agate might be permitted to participate in the trial. We ultimately did not reach that question conclusively, however, because of the distinctive procedural posture in which the case had been liti-gated and the appeal had arisen. Instead, we en-forced Agate's contractual duty to indemnify TMUA, without requiring any further factual findings on re-mand by a jury or otherwise:
The matter may be best resolved, as TMUA and Kupper sought here, by keeping the indemnitor in the case on the indemnification claim. But we need not now decide what the judge should have done had he denied Agate's mo-tion. Rather, we have to determine what we must do in light of the fact that
he granted the motion, and we must do so in view of the established record. Of particular importance are the [jury's] determinations that neither TMUA nor Kupper were found liable, although Kupper was found to be negligent.
Here, Agate chose not to partici-pate by moving for a dismissal of the third-party claims. Rather, it sought to be relieved of an obligation to become involved in the trial proceedings.
In these circumstances, taking ac-count of the proofs [*52] that Agate vi-olated OSHA regulations, and given a jury verdict finding neither defendant li-able for plaintiffs' work-related injuries, we are unprepared to permit Agate to re-litigate the issue of negligence or whether either TMUA or Kupper can be said to be solely negligent.
[Id. at 586 (emphasis added).] Thus, under the particular circumstances presented in Bradford, we only remanded the case for "consid-eration of all the issues regarding attorneys' fees and costs for which TMUA and Kupper are entitled under the indemnification clause." Id. at 587. The panel's comment in Bradford about how the participation question "may be best resolved," id. at 586, although it is merely dicta, arguably suggests a willingness to reconsider Kane's declared prohibition on an em-ployer/indemnitor's participation in the negligence trial. We are mindful, however, that the panel's com-ment in 1995 about that subject preceded the Su-preme Court's 1996 unelaborated affirmance of Kane. We also are mindful that our opinion in Brad-ford did not discuss Kane or, for that matter, White, regarding the procedural issues.
In a later tort case that we reviewed on appeal, Leitao v. Damon G. Douglas, Company, 301 N.J. Su-per. 187, 693 A.2d 1209 (App. Div.), certif. denied, 151 N.J. 466, 700 A.2d 879 (1997), we noted there that the Law Division had severed [*53] at trial a de-fendant general contractor's third-party complaint for contractual indemnification against the plaintiff's em-ployer. Id. at 190. After the jury found the contractor 51% negligent and the employee 49% negligent, the trial court addressed the indemnification questions. The court ruled that the plaintiff's employer was obli-gated to fully indemnify the defendant, despite the plaintiff's comparative fault. Id. at 190-91. The court
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did so because the accident "arose out of" the em-ployer's subcontract and was not caused by the de-fendant indemnitee's "sole negligence." Id. at 190, 195. Our appellate opinion in Leitao did not consider, however, whether the employer should have been permitted to participate in the jury trial, or whether, in retrospect, the severance of the indemnification is-sues was proper. Our opinion did not cite to Kane or White and only cited Bradford with regard to a differ-ent issue. Id. at 192.
This line of published cases arguably leaves some residual uncertainty about the proper way to proceed in these jury trial situations where a tort de-fendant has a fact-dependent claim for contractual indemnification against the plaintiff's employer, and about the breadth of the approach we adopted in Kane [*54] . We are now asked to consider in the present case -- one of truly massive scope -- whether the impetus for a unitary proceeding here is stronger than it was in Kane.
The dimensions of Kane are distinguishable from the present case, which is not just limited to construction accident defendants and negligence claims but also includes medical malpractice defend-ants and claims. Here, unlike in Kane, there was no significant risk that the employer, S&B, would "con-trol the litigation." Kane, supra, 278 N.J. Super. at 147. In essence, S&B was, metaphorically, another fish in a very large pond.
The sheer number of defendants and claims in this case compels us to consider whether the ap-proach adopted in Kane should be inflexibly followed in large-scale cases, or whether, conversely, the in-terests of judicial efficiency should take precedence and warrant an exception to Kane. 2.
A few other state courts and treatise writers have grappled with this perplexing issue. Our research has identified several instances in which the plain-tiff's employer took part in the jury trial of the tort case, despite the workers' compensation laws of the applicable state, in order to adjudicate third-party claims brought by a tort defendant against that [*55] employer for indemnification.8
8 See, e.g., Giguere v. Detroit Edison Co., 114 Mich. App. 452, 319 N.W.2d 334 (Mich. Ct. App. 1982) (allowing such indemnification claims to be tried before the jury along with the plaintiff employee's negligence claims against the defendant indemnitee, affirming
the trial court's denial of the employer's sever-ance motion seeking a separate trial on the indemnification issues); Frederickson v. Alton M. Johnson Co., 402 N.W.2d 794 (Minn. 1987) (permitting the negligence and the in-demnification issues to be tried together, but granting a directed verdict to the employer be-fore submitting the case to the jury); Severino v. Schuyler Meadows Club, 225 A.D.2d 954, 639 N.Y.S.2d 869 (N.Y. App. Div. 1996) (af-firming a judgment following a combined jury trial on negligence and indemnification is-sues, in which the jury found the defendant/in-demnitee general contractor 20% at fault for the accident and the plaintiff's employer 80% at fault); Berardi v. Getty Ref. & Mktg. Co., 107 Misc. 2d 451, 435 N.Y.S.2d 212 (N.Y. Sup. Ct. 1980) (similarly involving a combined jury trial). By contrast, in Levine v. Shell Oil Company, 28 N.Y.2d 205, 269 N.E.2d 799, 321 N.Y.S.2d 81 (N.Y. 1971), the parties stip-ulated that the plaintiffs' negligence claims against the defendant would be tried before a jury, and that the defendant's claims for in-demnification against the plaintiffs' employer were to be separately resolved by the trial judge alone. Id. at 84.
On the other hand, some jurisdictions have ruled that, under an express contract of indemnity running from a plaintiff's employer to a third party, [*56] "the third party cannot insist that the employer and the employer's insurer be joined in the plaintiff's action for purposes of enforcement of the right of indem-nity." 11 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 121.04[5] (Matthew Bender, Rev. Ed. 2014) (emphasis added) (citing Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (N.C. 1965) and Baldwin Co. v. Ceco Corp., 280 Ark. 519, 659 S.W.2d 941 (Ark. 1983)).
The Larson treatise recommends that "[s]ince the indemnity claim is by definition a separate legal cause, and, unlike the employer's contributory negli-gence, is not intertwined with the tortious incident it-self, every precaution should be taken to see that the employee's own . . . rights are not prejudiced by the interjection of this [indemnity] factor into his or her case." Ibid. "This kind of tangle is at least partly avoided by [an approach] which sees to it that the first step in the process, the action by the employee plaintiff, goes forward without the complicating pres-ence of the parties and issues involved in the indem-nity problem." Id. at § 121.04[7] (emphasis added).
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That said, the Larson treatise further recognizes that the problem cannot always be "easily side-stepped," and that there can be circumstances in which the negligence and indemnity issues might need to be tried together. Ibid. As an illustration, [*57] the treatise referred to situations in which an insurer for the employer/indemnitor would not provide cov-erage for that obligation unless the employer's negli-gence is proven to have caused injury. In that sce-nario, the employer's carrier "would have an interest in proving that the employer had not in fact negli-gently contributed to the employee's injuries." Ibid. 3.
The preferred solution to this quandary concern-ing the employer/indemnitor's proper role at trial, at least in a case with large dimensions like the present one, is by no means obvious. There are competing policies to consider.
On the one hand, we recognize the important workers' compensation policies that underlie the ex-clusive remedy feature of the WCA. We also are mindful of the related desire not to entangle an in-jured worker's employer indiscriminately in negli-gence actions that the employee brings against other tortfeasors. Those concerns seemingly weigh in fa-vor of holding separate trials or hearings on indem-nification issues.
On the other hand, our system of justice also fa-vors consistency of outcomes, efficiency, and the avoidance of the needless consumption of time and resources to litigation. See, e.g., Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522, 897 A.2d 1003 (2006); State v. Gonzalez, 75 N.J. 181, 190, 193, 380 A.2d 1128 (1977). Those [*58] offsetting con-siderations weigh in favor of attempting to resolve in-demnity issues, where possible, within the same trial or before the same fact-finder.
We suspect that, in many instances, such as the present case, a general contractor or project owner routinely will insist on its subcontractors entering into broad indemnification agreements that strive to insu-late the owner or general contractor from liability when one of the subcontractors' employees is in-jured on the job site. Depending on the contractual language utilized, the proper application of those in-demnity agreements may require factual findings as to: whether the employee's injury "arose out of" the work encompassed by the indemnity contract; whether the worker's employer was at least in part at fault for the accident; and whether the defendant in-demnitee was not itself 100% at fault. These factual
issues can be very closely intertwined with the liabil-ity proofs and the findings that a jury must make in the underlying negligence case.
Where the parties in the negligence case have not agreed to a bench trial, the jury's paramount function as fact-finder generally ought to include those factual issues relative to contractual [*59] in-demnification. It could be exceedingly difficult for a trial judge (who would not, of course, be privy to the jury's deliberations) to attempt to adjudicate the proofs in an indemnity proceeding in a manner that would respect the jury's findings but still resolve the open factual questions.
For instance, what if the judge, upon hearing the evidence in a "round two" indemnification trial or pro-ceeding, perceives from the testimony that the co-defendant seeking indemnity was not negligent or only slightly negligent, despite the jury's earlier find-ing imposing the greatest share of liability upon that defendant? Or, what if the judge perceives that the defendant seeking indemnification from the plaintiff's employer bears a much higher percentage of fault in causing the accident than the level ascribed by the jurors? This predicament, and the risk of inconsistent outcomes, is surely troublesome.
Moreover, a separate trial or proceeding on in-demnification will invariably consume lawyer time and expense, expert time and expense, witness time, and other resources already expended in the earlier negligence trial. Why should a plaintiff, having already tried the tort case to verdict, need to [*60] become entangled in another proceeding, one that only involves the business-driven contractual agree-ments between his or her employer and another pri-vate party?
We have considered the possibility that the fac-tual proofs might be presented simultaneously be-fore the jurors for purposes of the negligence claims and defenses, and for the judge, for purposes of the indemnity issues. Such a "split fact-finder" approach still can pose several disadvantages, however. For one thing, the indemnitor or the indemnitee might have demanded a jury on the contractual issues. Even if no such jury demand were made, the em-ployer/indemnitor has an advocacy interest in pre-senting evidence, cross-examining opposing wit-nesses, interposing evidentiary objections, and mak-ing arguments during the course of the trial. It might be difficult to explain to jurors what role counsel for the employer is actually performing at such a trial be-fore "dual" decision-makers.
In addition, the judge serving as the fact-finder on the indemnity issues may have questions or need
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clarification about testimony as the case unfolds. This will place the judge in the difficult position of ei-ther letting those queries go unanswered, [*61] or interfering -- perhaps too often -- with counsel's presentation of the case to the jurors.
Taking all of these competing concerns into ac-count, we hold that the sounder practice -- in a con-text such as the present one involving claims even more extensive than those in Kane and an unusually lengthy trial -- is to try the negligence and contractual indemnification issues simultaneously before the jury. After the evidence has been presented at such a trial, the court should issue carefully-crafted jury in-structions, addressing the pivotal factual issues that the jury must decide. The verdict form will likewise need to be carefully designed, so as to only have the jurors address the question of the employer's poten-tial fault when it is absolutely necessary to do so.
For example, the jury must be instructed that they should only consider the employer's negligence if they first determine that the conduct of the defend-ant seeking indemnity is not the sole cause of the accident. Jurors will be presumed to follow such in-structions faithfully. See Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97, 74 A.3d 10 (App. Div.), certif. denied, 216 N.J. 366, 80 A.3d 747 (2013). In this way, the unified trial process will not subvert the policies and objectives underpinning the exclusive remedy provision of [*62] the WCA. This unitary fact-finding model avoids discordant results and may conserve the resources of the parties and the court.
The jury should be given appropriate instructions about the presence of the employer's counsel in the trial, explaining that he or she is participating solely with respect to certain factual issues that the jury might need to address. The jury should not be given an "ultimate outcome" instruction divulging that the plaintiff cannot recover any damages from the em-ployer, for we suspect such an instruction would likely engender confusion and speculation.
The judge must mold the verdict after it is issued, so that the plaintiff's damages are not reduced by the employer's percentage share of fault, if any. Instead, the non-employer defendants must fully bear any li-ability owed to the plaintiff. Thus, for example, if the jury finds defendant "A" 60% at fault, another defend-ant "B" 20% at fault, and the plaintiff's employer, de-fendant "C," 20% at fault, with no comparative fault accorded to plaintiff, the employer's 20% share must be divided among the other defendants in a molded judgment that assigns a 75% share to defendant "A" and 25% to defendant "B."
We stop short, [*63] however, of prescribing that such a combined jury trial on negligence/con-tractual indemnification issues also address discrete factual issues bearing upon insurance coverage, an option that was suggested to us at oral argument by one of the insurance counsel. We also reject the re-lated suggestion that the jury should answer special interrogatories on the verdict form resolving any ad-ditional factual disputes that relate to insurance cov-erage.
In order to provide meaningful responses to such insurance-related queries, the fact-finder presuma-bly would want the benefit of the advocacy of counsel who are respectively seeking or opposing coverage. Such advocacy would call for insurance counsel to participate in the trial itself, to present and contest evidence, and to make closing arguments to the jury. The jury would therefore need to understand cover-age counsel's role in the case and, presumably, the identities of their clients. That participation would un-doubtedly risk speculation by jurors about the exist-ence and levels of insurance coverage available to defendants. It could easily taint the jury's findings on negligence and the amount of any damages awarded. See N.J.R.E. 411 (generally [*64] exclud-ing proof of liability insurance coverage in cases in-volving negligence or other wrongful conduct). There is also a real danger that the insurance coverage is-sues could dominate the jury trial, thereby misdirect-ing the focus of plaintiff's negligence case.
We therefore limit our prescriptive holding to the participation of counsel who represent the parties on the issues of contractual indemnification (e.g., as be-tween a general contractor or owner and a subcon-tractor). We do not endorse expanding the trial fur-ther to involve insurance issues or coverage counsel. The coverage issues must instead be decided by the court or, where a jury demand has been made by the insurers or the insureds, by a separate jury.
We recognize that the procedural solution we have endorsed is not perfect. Even so, we consider it the most superior of the possible alternatives, at least for cases such as the present one, involving a significantly greater scope than Kane. That said, the parties are free to stipulate to a different process, provided that the trial judge in his or her discretion finds such a proposed alternative sensible.
We suspect that, as a result of settlements with some parties and dispositive [*65] motion practice, the need for a combined tort/contractual indemnifica-tion trial may prove to be infrequent. In any event, we hope the direction that we have provided here will be useful in those future situations when they do arise.
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Although it is not our prerogative to do so, the Su-preme Court may also wish to revisit whether the ap-proach in Kane should be followed in less complex settings. B.
Before we apply these principles to the trial that occurred here, certain threshold matters must be ad-dressed to provide a proper context. We first con-sider Hugo Neu's indemnification agreements with, respectively, Femco and S&B, and the trial court's interpretation of those agreements. 1.
In Femco's subcontract, it broadly agreed to in-demnify Hugo Neu for "any and all claims . . . arising, or allegedly arising, from and out of (a) the work in-cident to or resulting from any and all operations per-formed by [Femco] under or pursuant to any of the provisions of [its subcontract]." Femco also agreed to indemnify Hugo Neu for claims arising out of "(b) any injury to, or death of, any person or persons . . . occurring wholly or in part in connection with or re-sulting from the work or by reason of any [*66] act, omission or negligence of [Femco][.]" Thirdly, Femco agreed to indemnify Hugo Neu for claims arising out of "(c) any breach or default hereunder by [Femco][.]" The subcontract specified that all three of these in-demnity triggers apply, "whether or not any acts, er-rors, omission[s] or negligence of any of the [i]ndem-nities [i.e., Hugo Neu] contributed thereto in whole or in part[.]"
The trial court correctly held this indemnity lan-guage in the Femco subcontract to be valid and en-forceable. We further concur with the court that this contract language was sufficiently plain and unequiv-ocal to require Femco to indemnify Hugo Neu for damages caused by Hugo Neu's own negligence. See Ramos, supra, 103 N.J. at 191-92 (requiring such provisions to be expressed in unequivocal terms); see also Azurak v. Corporate Prop. Inves-tors, 175 N.J. 110, 112-13, 814 A.2d 600 (2003) (same).
We reject Femco's argument that the "whether or not" phraseology contained in the contract's in-demnity provision created a fatal ambiguity that limits its obligation to indemnify Hugo Neu for its own neg-ligence. Nor do we agree with Femco that the indem-nity language here is internally inconsistent. The only limitation that applies stems from the statute, N.J.S.A. 2A:40A-1, precluding an enforceable duty to indemnify a party that is solely negligent, not ap-plicable [*67] here.
In addition, we are unpersuaded by Femco's claim that the "arising . . . out of" phrase in the con-tract's indemnity language precludes Femco's duty to indemnify Hugo Neu for injuries that were not shown to be proximately caused by Femco's con-duct. Applying a common and ordinary sense to that phrase, there only needs to be proof of "a substantial nexus" between the injury and the activities encom-passed in the contract. Vitty v. D.C.P. Corp., 268 N.J. Super. 447, 452-53, 633 A.2d 1040 (App. Div. 1993); see also Leitao, supra, 301 N.J. Super. at 193.
For example, even if Hugo Neu were found par-tially negligent for an accident resulting to some ex-tent from its failure to maintain the safety of a job site where Femco was working, the indemnification agreement would apply. That is because of the "sub-stantial nexus" between the accident and the job site activities encompassed by the contract, unless, as we have said, Hugo Neu were found to be 100% re-sponsible for the unsafe conditions. 2.
Hugo Neu's subcontract with S&B likewise con-tains broad indemnity language. Stripped to its es-sence, the indemnification clause provides that "[t]o the fullest extent permitted by law," S&B shall indem-nify Hugo Neu "against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or [*68] resulting from performance of [S&B's work under the contract], including, without limitation, any such claim, damage, loss or expense attributable to bodily injury, . . . caused by the acts or omissions of [S&B], . . . or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by [Hugo Neu]."
This language clearly expresses that S&B must indemnify Hugo Neu against all claims "arising out of or resulting from performance of" S&B's work. The obligation applies, "regardless of whether or not such claim, damage, loss or expense is caused in part by [Hugo Neu]." The contract expressly identifies one subset of such claims for which S&B must indemnify Hugo Neu "without limitation," that is, claims for bod-ily injury caused by S&B's negligence, or the negli-gence of any party for which S&B is responsible.
Hence, under the clear and unambiguous terms of the indemnification clause, S&B must indemnify Hugo Neu for decedent's damages caused by Hugo Neu or S&B. As we have already noted with respect to Femco's similar provision, the phrase "arising out of" does not require a finding of proximate cause be-
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tween a plaintiff's injury and [*69] S&B's work. Ra-ther, it is sufficient that there is proof of a substantial nexus between the injury and S&B's work. Vitty, su-pra, 268 N.J. Super. at 452-53. So interpreted, dece-dent's injury here clearly "arose out of" his employer S&B's work under the contract, because it is undis-puted that decedent was injured while performing such work.
The trial court therefore correctly granted partial summary judgment to Hugo Neu in ruling that S&B was obligated to indemnify Hugo Neu pursuant to their subcontract, so long as Hugo Neu was not found to be solely liable for the accident. We there-fore reject S&B's cross-appeal of that determination. 3.
The indemnity issues are complicated here, however, by the fact that Hugo Neu bargained for du-plicative indemnity protection from both Femco and S&B. Given that the accident had a substantial nexus to the work of Hugo Neu, Femco, and S&B, and did not arise wholly out of Hugo Neu's negligence, a question arises as to whether Femco or S&B has a primary duty to indemnify Hugo Neu, or whether those duties somehow should be equitably allocated, assuming that Hugo Neu seeks to enforce its rights under both indemnity agreements.9 See, e.g., Chamison v. Healthtrust, Inc., 735 A.2d 912 (Del. Ch. 1999) (in which a corporation's director had a right to be indemnified [*70] by two separate indemnitors, and in which the court divided their indemnity obliga-tions equally), aff'd, 748 A.2d 407 (Del. 2000).
9 At oral argument on appeal, counsel for S&B asserted that Hugo Neu has "waived" its rights to seek indemnity from S&B. We have located no evidence of such a waiver in the parties' submissions. Indeed, Hugo Neu filed a brief opposing S&B's cross-appeal of the trial court's ruling obligating S&B to indemnify Hugo Neu.
Although the parties have not briefed these pre-cise issues of overlap, it is conceivable that the rela-tive shares of fault of Femco and S&B may bear upon their resolution.10 No such comparative findings were made by the jury here. As we have already noted, the jury was not permitted to consider assign-ing a percentage share of fault to S&B. We shall con-sider the consequences of that omission, infra, in Part III(C).
10 We suspect that Femco and S&B have not squarely addressed this priority issue be-cause they both incorrectly presume that they
would need to be individually found at least partially at fault in order to have any duty to indemnify Hugo Neu.
C.
Given the circumstances, the trial court justifi-ably allowed S&B's counsel to participate in this jury trial, despite the [*71] objections posed at the time by plaintiffs' counsel. The issues of contractual in-demnification relating to Femco, S&B, and Hugo Neu required several factual determinations, in which S&B surely had an interest.
These issues included whether Hugo Neu was solely at fault for the accident, in which case it would be entitled to no indemnity from either Femco or S&B under N.J.S.A. 2A:40A-1. The issues also included whether Femco and S&B were each at fault, and, if so, to what extent, because those findings could bear upon the relative potential indemnity obligations to Hugo Neu of both S&B and Femco. If, for instance, the jury found S&B to be faultless, or that S&B's share of fault were less than that of Femco, then Femco arguably might have had the paramount obli-gation to indemnify Hugo Neu.
The trial court declined, however, to include S&B on the verdict form and thereby allow the jury to "weigh in" on S&B's role, if any, in causing dece-dent's accident. Such potential fault was not a fanci-ful possibility, as the evidence could have been rea-sonably viewed (consistent with certain opinions pre-sented by some of the liability experts) to support a finding that S&B was negligent in allowing decedent, [*72] as its employee, to work in an area with an unsecured ladder it may have owned.
Citing our opinion in Kane, supra, the trial judge declined to place S&B on the verdict form out of an apparent concern that doing so would be incon-sistent with the workers' compensation laws, and could unfairly interfere with plaintiffs' prosecution of their claims against the other defendants. In this re-gard, the judge issued the following explanatory in-struction to the jury:
The plaintiffs may at some point have considered whether Simpson & Brown was negligent. As to that issue, I have ruled, as a matter of law, that the plaintiffs cannot sue Simpson & Brown for negligence in this case because it is unquestioned that Simpson & Brown was Mr. D'Avila's employer and the law does not permit that lawsuit to take place. So you're not going to be asked
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to assess the responsibility of Simpson & Brown in this case.
Simpson & Brown did participate in this case, as you know, but they partic-ipated for another issue which I, the Court, have to address later. It relates to a contract claim between Simpson & Brown and one or another of the con-struction defendants, and that's not for you to consider. Please don't speculate [*73] as to what that issue is.
Only counsel for S&B, Dr. Schrader, and Nurse Gar-cia opposed the omission of S&B from the verdict form.11
11 Hugo Neu initially took the position be-fore the trial began that S&B should be on the form. However, after the proofs were pre-sented, Hugo Neu withdrew its objection at the charge conference, because its counsel had "shifted [his] focus" during the trial to the other defendants, given the court's previous indication before opening statements that S&B would not be on the verdict sheet.
Notably, Femco itself never asserted a position to the trial court about the propriety of S&B's partici-pation at trial, nor concerning S&B's inclusion or omission from the verdict form. Femco presented no argument on these subjects at the October 11, 2011 pretrial hearing, in the colloquy with the court when the issue arose again on October 19, 2011 before opening statements, or during the January 3, 2012 charge conference. Femco, which is now being rep-resented by different counsel on appeal, does not ex-plain why it was silent on this controversial subject before the trial judge, although we presume it had some strategic reason for being non-committal.
For the reasons we have already [*74] noted in Part III(A), supra, the trial judge's reluctance to in-clude S&B on the verdict form stemmed from legiti-mate concerns and a reliance upon our prior opinion in Kane. Moreover, as we have also shown, the state of law on this particular subject was muddled. Nev-ertheless, we conclude that the court erred in omit-ting S&B from the verdict form, having allowed S&B otherwise to participate fully in the trial and be repre-sented by two separate counsel (one as to the job site accident and another as to the medical negli-gence claims). It was simply improper to allow S&B to participate in one manner without the other, and counsel have cited no authority endorsing such an arrangement.
That said, we now must consider what to do about the verdict form omission. Femco is the only party that is pressing the point on appeal, hypothe-sizing that its percentage share of liability might have been less had S&B been on the verdict form. S&B acknowledges the omission was error, but contends that it was harmless. Dr. Schrader, who had opposed S&B's omission, has settled with plaintiffs, and Nurse Garcia, who also opposed the omission, was not found liable. Plaintiffs, who had previously resisted S&B's participation, simply [*75] urge that we not upset the verdict or require them to participate in any second trial. Hugo Neu also opposes a retrial, de-spite having initially favored S&B's inclusion on the verdict form when the issue arose before trial.
Notably, no party on appeal is arguing that Kane required S&B, as decedent's employer, to be ex-cluded from this trial. In fact, the sole appellant that criticizes what occurred in the trial court, Femco, ad-vocates just the opposite: that we repudiate "[t]he Kane court's admonition that an employer/indemnitor should not be permitted to participate in its em-ploye[e]'s personal injury trial[.]" Citing Rule 4:30A (the single controversy rule), Femco further argues that Kane's approach "unnecessarily suppresses" the important "public policy in favor of disposing of all claims against all parties in one proceeding." In-stead, Femco advocates that we adopt a more effi-cient approach that allows the employer to partici-pate, but with appropriate "jury instructions that ex-plain the parties' specific claims and how the jury may apportion fault." Hence, Femco urges that the unitary trial approach, sanctioned in White and men-tioned in Bradford, be applied to cases such as the present one.
Given that [*76] Femco did not advocate -- ei-ther before or during the trial -- for S&B's inclusion on the verdict form, we do not perceive a manifest injus-tice to Femco that needs correction. We do not coun-tenance a retrial of the entire case, which consumed almost forty days before a jury.
The "plain error" standard of review may be in-applicable here because the error of S&B's omission was "brought to the attention" of the trial court, albeit by other parties, see Rule 2:10-2. Even so, we are not convinced that Femco was sufficiently prejudiced by that error to compel a retrial.
With respect to Femco's now-resolved direct lia-bility to plaintiffs, we discern no prejudice from S&B's omission from the verdict form. Femco's counsel strenuously advanced an "empty chair" theme against S&B at trial. That strategy apparently failed
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to persuade the jurors that Femco was blameless in the events leading up to the accident.
We are unpersuaded that the jury would have exonerated Femco, or would have been likely to find Hugo Neu more liable than the 25% allotted by the jury, had S&B been listed on the verdict form. There is no equitable or legally compelling reason here to require the entire case to be retried before a different [*77] jury, despite the improvident omission of S&B from the verdict form now belatedly being com-plained of by Femco. In addition, Femco's recent set-tlement with plaintiffs, in which plaintiffs' judgment against Hugo Neu has been assigned to Femco, only strengthens the reasons for not burdening plaintiffs with additional proceedings.
A lesser remedy may, however, be appropriate, depending upon what Hugo Neu now intends to do with respect to its overlapping rights of indemnifica-tion against Femco and S&B. If Hugo Neu still in-tends to pursue indemnification from both subcon-tractors, pursuant to the terms of their contracts, a fact-based apportionment of fault between Femco and S&B might well be necessary to resolve their re-spective duties to indemnify.12
12 We do not resolve here whether the ex-clusive remedy mandate of N.J.S.A. 34:15-8, or related case law disallowing common-law contribution claims against a negligent em-ployer, see Ramos, supra, 103 N.J. at 189, could affect the priority of duplicative duties to indemnify owed to Hugo Neu by both Femco and S&B. We also do not resolve whether those authorities could affect whether Femco could obtain reimbursement from S&B of any sums it might pay to indemnify Hugo Neu. These issues, [*78] conditional as they are in nature, have not been briefed. If necessary, the trial court may consider them on remand, in light of any arguments raised by counsel.
The jury trial unfortunately provided no guidance to compare Femco's and S&B's roles, respectively, in connection with the job site accident. That com-parison is not amenable to being resolved by our ap-pellate review of transcripts from the jury trial, or by remanding the matter to the trial judge for a review of his trial notes. Instead, the comparative relative percentages of fault of Femco and S&B -- assuming, arguendo, that they are needed to sort out the over-lapping indemnity obligations of Femco and S&B -- cannot be fairly decided without testimony and cred-ibility assessments.
Should Hugo Neu, therefore, maintain its right to be indemnified by both Femco and S&B, then an-other proceeding may be required on remand to sort out the respective degrees of fault of Femco and S&B, as between one another. The percentage shares of Hugo Neu, Femco, and Dr. Schrader owed to plaintiffs shall remain undisturbed. The sole focus of such remand proceedings on the issues of con-tractual indemnity, if they are needed, shall be con-fined to a [*79] comparison of the actions and inac-tions of Femco with the actions and inactions of S&B.
Because Femco, S&B, and Hugo Neu each re-quested a jury trial in their pleadings, the remand proceedings shall be tried, if necessary, before a new jury, unless, of course, the parties consent to a bench trial. To reduce the costs involved and the bur-dens imposed on the other parties who are no longer involved in the case, counsel are encouraged to stip-ulate as much as possible to undisputed facts, and to consider agreeing to have much of the transcribed testimony from the first trial read into the record.
We emphasize that the scope of this second pro-ceeding, if one is required, should be narrow. The damages awarded to plaintiffs shall remain unal-tered. IV.
In its cross-appeal in A-4439-11, S&B contends the trial court erred by submitting to the jury a verdict form that improperly reflected the proximate cause analysis prescribed by Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), for "increased risk" medical negligence claims. S&B contends that this alleged error in the verdict form requires a new trial on prox-imate cause as to plaintiffs' damages, and apportion-ment of liability to Nurses Garcia and [*80] Cutshall.
Under Scafidi, for cases in which a defendant's alleged medical negligence combines with a preex-isting condition to cause an injury, the proximate cause analysis is bifurcated. Id. at 108-09. As the Su-preme Court advised in Scafidi:
[T]he jury is first asked to verify, as a matter of reasonable medical proba-bility, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Assuming that the jury determines that the deviation increased the risk of harm from the preexistent condition, we use the "substantial factor" test of causa-tion because of the inapplicability of "but for" causation to cases where the
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harm is produced by concurrent causes. The "substantial factor" stand-ard requires the jury to determine whether the deviation, in the context of the preexistent condition, was suffi-ciently significant in relation to the eventual harm to satisfy the require-ment of proximate cause.
[Id. at 109 (citations omitted).] Accord Verdicchio v. Ricca, 179 N.J. 1, 23-30, 843 A.2d 1042 (2004); Reynolds v. Gonzalez, 172 N.J. 266, 280-90, 798 A.2d 67 (2002). These overarching principles from Scafidi resulted in the adoption of a Model Civil Jury Charge for "increased risk" malprac-tice cases. The model charge was revised after the trial in the present case. See Model Jury Charge (Civil) [*81] 5.50E, "Pre-Existing Condition -- In-creased Risk/Loss of Chance -- Proximate Cause" (2014).
During the charge conference here, plaintiffs' counsel requested that there be only two Scafidi questions on the verdict form, rather than three. Counsel for Hugo Neu and S&B joined in that re-quest, and counsel for Dr. Schrader and Nurse Pangilinan opposed it.
Ultimately, the court rejected the request for two questions. The verdict form asked the jury three dis-crete questions with respect to each medical defend-ant:
Did plaintiffs prove by a preponder-ance of the evidence that [defendant] deviated from accepted standards of critical care medical [or nursing] prac-tice? . . .
Did plaintiffs prove by a preponder-ance of the evidence that the deviation by [defendant] increased the risk of harm posed by Mr. D'Avila's pre-exist-ing condition? . . .
Did plaintiffs prove by a preponder-ance of the evidence that [the] in-creased risk was a substantial factor in producing the ultimate injury sustained by Mr. D'Avila? . . .
As to Dr. Schrader, the jury answered yes to all three questions. As to Nurse Pangilinan, the jury answered no to question one concerning her alleged deviation, and therefore did not answer the [*82] remaining
two questions. As to Nurses Garcia and Cutshall, the jury answered yes to the first two questions, and no to the third regarding "substantial factor."
Although plaintiffs do not contest on appeal the three-question approach on the verdict form, S&B al-leges harmful error and prejudice from those queries. S&B conjectures that if a third question had not been posed as to Nurses Garcia and Cutshall, the jury might have found them also liable, along with Dr. Schrader, thereby perhaps reducing the collective percentage of fault of the construction defendants.
Recent case law supports the propriety of the three Scafidi questions that were posed here to the jury. See Flood v. Aluri-Vallabhaneni, 431 N.J. Su-per. 365, 370-85, 70 A.3d 665 (App. Div.), certif. de-nied, 216 N.J. 14, 76 A.3d 533 (2013); Koseoglu v. Wry, 431 N.J. Super. 140, 154, 161-62, n.3, 67 A.3d 646 (App. Div.), certif. denied, 216 N.J. 4, 75 A.3d 1159 (2013). After examining the governing case law, in Flood, supra, 431 N.J. Super. at 370-84, we expressly approved the same three jury interrogato-ries that were used in this case. We also expressly disapproved the then-existing model Scafidi interrog-atories, which have since been revised.
In Flood, supra, 431 N.J. Super. at 379, the plaintiff claimed error, as S&B does here, with re-spect to question three "requiring the jury to find [the] plaintiff proved the increased risk from [the defend-ant's] deviation was substantial factor in bringing about [the patient's] [*83] death." However, we re-jected that argument, finding that the three "ques-tions on the verdict sheet tracked the language of the current Model Charge and clearly explained those is-sues upon which [the] plaintiff bore the burden of proof." Ibid. The three-part question posed in Flood "properly reflected the sequential analysis required by" governing case law. Ibid.
We "express[ed] no opinion" in Flood "as to whether a single second question -- 'Has plaintiff proven that defendant's deviation increased the risk of harm posed by plaintiff's pre-existing condition and was the increased risk of harm a substantial fac-tor in causing the ultimate result? -- is preferable to two separate questions." Id. at 385. Instead, we urged the Committee on Model Civil Jury Charges to revisit the issue of appropriate model interrogatories. Ibid. After the Committee studied the question, it adopted a revised charge, supra, that recommended the three-question approach that was utilized at this trial.
We are satisfied that the jury charge and verdict form that were used in this case on the Scafidi issues were consistent with sound legal principles. S&B was
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not unfairly prejudiced by the court's rejection of its request for a two-part [*84] question. There is no need for a retrial on this issue. The jury's findings as to the respective liability and non-liability of the indi-vidual medical defendants shall remain intact. V.
We finally address the numerous issues raised on appeal by two of the insurance carriers, specifi-cally C&F and American Home. As we noted earlier, C&F issued a policy to Femco; Continental issued a policy to Hugo Neu; and American Home, through Willis as broker, issued a policy to S&B.
We have carefully considered the language and interplay of those insurance policies, which need not be recited at length here. For the most part, we con-clude that the trial court properly construed and ap-plied those policies in its various insurance rulings. As we explain, certain discrete aspects of those rul-ings, however, should be vacated and remanded to the trial court for further consideration. 1. C&F's Appeal
C&F contends the trial court erred by: (1) grant-ing summary judgment, ruling that Hugo Neu was entitled to primary non-contributory coverage under the C&F policy; and (2) granting Continental's post-trial motion for counsel fees and costs in defending Hugo Neu. We reject these contentions in part, and agree with [*85] them in part.
Hugo Neu's contract with Femco obligated Femco to obtain commercial general liability insur-ance ("CGL") naming Hugo Neu as an additional in-sured. Femco had procured a CGL policy with C&F. The C&F policy contained an endorsement that de-fined an "additional insured" to include:
the person(s) or organization(s) shown in the [associated] Schedule, but only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" caused in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf;
in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.
The C&F policy also included "PRIMARY/NON-CONTRIBUTORY" endorsements identifying by name additional insureds for which the policy would provide primary, non-contributory insurance. Those other endorsements did not mention Hugo Neu.
The Schedule relative to the policy showed the "Name Of [the] Additional Insured Person(s) Or Or-ganization(s)" to be "As required by written contract." This language in the C&F policy does not specify the coverage afforded to the additional insured. Rather, the coverage is [*86] specified in the language be-low the table in which the additional insured is iden-tified. The policy states that coverage is afforded "only with respect to liability for 'bodily injury,' 'prop-erty damage' or 'personal and advertising injury' caused in whole or in part, by" Femco's "acts or omissions", or "[t]he acts or omissions of those act-ing on [Femco's] behalf . . . in the performance of [Femco's] ongoing operations for the additional in-sured(s) at the location(s) designated above[.]"
Thus, the scope of insurance coverage must be determined by the terms of the C&F policy, and not by the terms of the construction contract between Hugo Neu and Femco. Jeffrey M. Brown Assocs., Inc. v. Interstate Fire & Cas., Co. 414 N.J. Super. 160, 163, 168-72, 997 A.2d 1072 (App. Div.), certif. denied, 204 N.J. 41, 6 A.3d 443 (2010); see also Transport Indem. Co. v. Home Indem. Co., 535 F.2d 232, 235 (3d Cir. 1976) (instructing that the terms of an insurance policy govern coverage, not the terms of insured's contract with another entity).13
13 See also 3 Jeffrey E. Thomas & Francis J. Mootz, III, New Appleman on Insurance Law Library Edition § 16.05(1)(c)(i) (2014) ("The language of the endorsement defines the extent of coverage for the additional in-sured, . . . . Subject to the policy or endorse-ment terms, an insurer has the same duty to cover and defend additional insureds as it does named and automatic insureds."); 9 Couch on Insurance § 126:7 "Additional [*87] insureds" (3d ed. 2015) ("The additional in-sured's interest in the policy is regarded as co-extensive with that of the named insured un-less the policy includes a severability of inter-ests clause. Accordingly, the additional in-sured enjoys the full benefits of the policy de-spite any restrictions contained in a separate contractual agreement with the insured, as well as being subject to all policy exclusions." (footnotes omitted)); 2 Allan D. Windt, Insur-ance Claims & Disputes § 11:30 at 11-551
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(6th ed. 2013) ("An insurer's duties are de-fined by what it contracted to do, not by what the insured contracted to do." (footnote omit-ted)).
The C&F insurance policy pre-existed the con-tract between Hugo Neu and Femco. There is no ev-idence that C&F was ever provided a copy of the construction contract, with an opportunity to adjust the premium. "[A] subcontract that requires the named insured-subcontractor to obtain primary cov-erage for the additional insured-general contractor cannot be construed to expand the scope of cover-age provided under an additional insured endorse-ment if the issuer of the policy was not provided no-tice of the subcontract's terms." Jeffrey M. Brown, supra, 414 N.J. Super. at 163.
The clear provisions of an "additional insured" [*88] endorsement of an insurance policy may not be overridden by the language of the contract be-tween the named insured and a party insured under the additional insured endorsement. Rather, such a contract may be considered in interpreting the lan-guage of an additional insured endorsement only where the meaning of that endorsement is ambigu-ous. Id. at 170; Cnty. of Hudson v. Selective Ins. Co., 332 N.J. Super. 107, 114-17, 752 A.2d 849 (App. Div. 2000) (looking to subcontract to interpret addi-tional insured endorsement's use of the ambiguous phrase "arising out of your work"). Therefore, Conti-nental cannot rely upon the contract between Hugo Neu and Femco to require C&F to provide broader coverage to Hugo Neu than that which was provided under the clear language of C&F's policy.
Here, there is no ambiguity as to the scope of C&F's coverage for an additional insured. Under the clear, unambiguous terms of the C&F policy, Hugo Neu is identified as an additional insured, "but only with respect to liability for 'bodily injury,' 'property damage' or 'personal and advertising injury' caused, in whole or in part, by" Femco's acts or omissions, or the acts of omissions of anyone acting on Femco's behalf, "in the performance of [Femco's] ongoing op-erations for [Hugo Neu]." (emphasis added).
Based on [*89] this analysis, we agree with C&F that summary judgment was inappropriately granted as to its duty to provide coverage to Hugo Neu. At the time of the motion, it was unclear whether any liability of Hugo Neu to plaintiffs would be, as the insurance policy specified, based upon injuries "caused, in whole or in part" by Femco's acts or omissions. Hence, as a matter of proper summary judgment practice, this factual determination was not
amenable for resolution on motion. See, e.g., Ve-lantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193, 536 A.2d 237 (1988).
Although we affirm the court's ruling that Hugo Neu has the status of an additional insured under the C&F policy, we reverse in part and remand for further proceedings on the issue of whether the factual trig-ger for coverage of Hugo Neu under the C&F policy has been established. There is such coverage only if decedent's injury was caused, in whole or in part, by Femco's acts or omissions in the performance of its work for Hugo Neu.
Because this insurance-related factual trigger is different from the arguably more inclusive "substan-tial nexus" test for Femco's contractual duty to in-demnify Hugo Neu, a remand is necessary to deter-mine if that factual trigger has been established. De-pending upon Hugo Neu's current [*90] intentions about pursuing contractual indemnification against both Femco and S&B, and the consequent need for a retrial, this factual issue can be folded in the court's discretion into that second trial.
If a second trial is going to be a jury case, we discern no compelling reason against the inclusion of insurance coverage counsel in that trial, since the claims of plaintiffs and their damages have already been adjudicated. The usual risks of an excessive jury award to a plaintiff, which might flow from juror awareness of insurance coverage, no longer are pre-sent. In any event, we entrust the determination of the appropriate factual-trigger proceeding to be held in this regard to the trial court's sound discretion.
Consequently, we reverse in part the trial court's grant of summary judgment to Continental. We affirm the court's ruling that Hugo Neu is an "additional in-sured" under the C&F policy, but with the proviso that such coverage is subject to the terms of that policy. C&F's obligation to pay any judgment against Hugo Neu should be resolved in a trial or other evidentiary proceeding in which the factual trigger concerning Femco's conduct is resolved.
On remand, the trial court [*91] may also con-sider other issues relating to the scope of coverage provided, for example, whether Hugo Neu would be entitled to primary, non-contributing insurance. That issue has not been adequately briefed to us, and we do not resolve it here. 2.
C&F further contends the trial court erred by granting Continental's post-trial motion for reim-
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bursement of counsel fees and costs incurred in de-fending Hugo Neu. C&F contends there was insuffi-cient documentation regarding the reasonableness of those fees, and because the court failed to con-sider how the fees should be allocated between C&F and American Home. American Home makes a sim-ilar argument.
We agree that this particular fee issue requires further consideration by the trial court on remand. On the present record, it is impossible for us to deter-mine whether the trial court abused its discretion in granting Continental's motion and the full amount of the fees it claimed. See R.M. v. Supreme Court of N.J., 190 N.J. 1, 12-13, 918 A.2d 7 (2007); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 14-15, 860 A.2d 435 (2004).
We therefore remand this fee issue to the trial court to reconsider Continental's motion for interim fees and costs. The trial court shall issue an opinion setting forth its findings of fact and conclusions of law on that motion, as required under Rule 1:7-4(a). On remand, [*92] C&F may request a hearing on the fee issue, but whether to hold such a hearing is within the trial court's discretion. Furst, supra, 182 N.J. at 24-26. 3. American Home's Appeal
American Home contends the trial court erred by granting summary judgment and ruling that Hugo Neu was an "additional insured" under the American Home policy. American Home contends that such coverage should not be afforded because S&B alleg-edly did not follow the necessary procedures for making Hugo Neu such an additional insured. Amer-ican Home further argues that Hugo Neu was not en-titled to primary, non-contributing coverage under its policy; and that Hugo Neu was not covered under S&B's umbrella policy with American Home.
Having fully considered these arguments, we are satisfied that Hugo Neu was an additional insured under the American Home policy and is thus entitled to primary, non-contributory coverage under that pol-icy. We agree with the trial court that S&B did not waive its ability to have Hugo Neu treated as an "ad-ditional insured" under the American Home policy.
The record shows that American Home was aware of the subcontract between Hugo Neu and S&B and the insurance policy terms when it issued letters addressing whether Hugo Neu [*93] was an additional insured. We perceive no error in the trial court's conclusion that, through its letters, American
Home waived any procedural defense to Hugo Neu's additional insured status based upon S&B's alleged failure to give notice of the contract.
Turning to the substance of the policy terms, the American Home policy clearly allowed S&B to con-tract with other companies and thereby make those other companies additional insureds. However, the policy did not permit S&B to unilaterally alter the terms of coverage by entering into such a contract without giving American Home an opportunity to re-view the contract. Indeed, the policy specifically sets forth that the inclusion of additional insureds does not affect the activities covered or the limit of liability established by the policy. Within the additional in-sured endorsement in particular, the policy sets forth that "ALL OTHER TERMS, CONDITIONS, LIMITA-TIONS AND EXCLUSIONS REMAIN UN-CHANGED."
Hence, the scope of Hugo Neu's coverage as an additional insured is governed by the substantive terms of the American Home insurance policy. Rea-sonably construed, the policy language should be read to signify that the insurance provided by Amer-ican [*94] Home to additional insureds such as Hugo Neu is primary, rather than excess.
American Home maintains that the coverage is excess, citing the "Other Insurance" provision. See W9/PHC Real Estate LP v. Farm Family Cas. Ins. Co., 407 N.J. Super. 177, 196-97, 970 A.2d 382 (App. Div. 2009) ("a primary policy with an excess other-insurance clause is a device by which a pri-mary insurer seeks to limit or eliminate its liability where another primary policy covers the risk, thus making it secondarily liable.").
Here, the "Other Insurance" provision states that it applies to the "Assured," with S&B identified as the "NAMED ASSURED" and the definition of "Assured" including S&B, as well as S&B's officers, directors, stockholders, and employees, subject to the speci-fied limitations. The additional insured endorsement does not amend the definition of the term "Assured." The term "assured," as defined in the policy, does not include additional insureds, such as Hugo Neu. If that were the intent of the American Home policy, it would have been simple to express it, as with the C&F policy, in which the additional insured endorse-ment amends the definition of the term "Insured." Hence, American Home's reliance on the "Other In-surance" provision here is unavailing.
For those reasons, we conclude the trial court [*95] properly held that the American Home policy provided primary and non-contributing insurance to Hugo Neu, as an additional insured.
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4.
Finally, with respect to S&B's umbrella policy with American Home, the trial court erred in address-ing that policy in its order, because the umbrella pol-icy was never presented for the court's considera-tion. Since that policy is not part of the appellate rec-ord, it is impossible to determine the scope of cover-age afforded under it to Hugo Neu, if any.
To summarize, we affirm the summary judgment orders, to the extent they held that Hugo Neu was an additional insured under the American Home policy, and entitled to primary, non-contributing coverage.
The matter is remanded for a determination of Amer-ican Home's potential coverage obligation with re-spect to Hugo Neu under the umbrella policy. VI.
We have considered all of the other points raised on appeal by the various parties and conclude that they lack sufficient merit to be discussed in this opin-ion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded in part. We do not retain jurisdiction.
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---- Reprinted with permission of LexisNexis.
CHARLES S. HOTTENSTEIN, Administrator for the Estate of Tracy Hottenstein; CHARLES S. HOTTENSTEIN; and
ELIZABETH K. HOTTENSTEIN, Plaintiffs, v.
CITY OF SEA ISLE CITY; et al., Defendants.
CIVIL ACTION NO. 11-740 (JEI/JS)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
977 F. Supp. 2d 353; 2013 U.S. Dist. LEXIS 147270
October 11, 2013, Decided October 11, 2013, Filed
PRIOR HISTORY: Hottenstein v. City of Sea Isle City, 793 F. Supp. 2d 688, 2011 U.S. Dist. LEXIS 64186 (D.N.J., 2011) CORE TERMS: summary judgment, scene, immun-ity, municipal, pulse, good faith, personnel, de-ceased, arrived, ambulance, paramedic, discovery, dangerous condition, pronouncement, culpability, patient, negligent hiring, punitive damages, vicarious liability, emergency, decedent, police officers, sub-stantial factor, state-created, conscience, favorable, proximate, marina, public employees, risk of harm COUNSEL: [**1] THE WESTCOTT LAW FIRM, P.C., By: Lynanne B. Wescott, Esq., Philadelphia, Pennsylvania, Counsel for Plaintiffs. POWELL, BIRCHMEIER & POWELL, P.C., By: James R. Birchmeier, Esq., Tuckahoe, New Jersey, Counsel for Defendants City of Sea Isle City, Harold Boyer, Thomas McQuillen, and Vincent Haugh. LAW OFFICES OF JAY J. BLUMBERG, ESQ., By: Christopher M. Wolk, Esq., Woodbury, New Jersey, Counsel for Defendants Zaki Khebzou and Atlantic Emergency Associates. MAYFIELD TURNER O'MARA & DONNELLY, P.C., By: Michael J. O'Mara, Esq., Robert J. Gillespie, Jr., Esq., Cherry Hill, New Jersey, Counsel for Defend-ants Sea Isle Ambulance Corps and Phyllis Linn. FOX ROTHSCHILD, L.L.P., By: Peter Sarkos, Esq., Epiphany McGuigan, Esq., Atlantic City, New Jersey,
Counsel for Defendants Atlanticare Regional Medi-cal Center, Atlantic City Medical Center, Atlanticare MICU Medics at Base 3. JUDGES: HONORABLE JOSEPH E. IRENAS, Sen-ior United States District Judge. OPINION BY: JOSEPH E. IRENAS OPINION
[*359] IRENAS, Senior United States District Judge:
This wrongful death / survivorship suit arises out of the untimely and tragic death of Tracy Hotten-stein.1 Presently before the Court are three Motions for Summary [*360] Judgment pursuant to Fed-eral Rule of Civil Procedure 56(a) [**2] filed by: (1) Defendants Sea Isle Ambulance Corps (SIAC) and Phyllis Linn; (2) Defendants City of Sea Isle City, Thomas McQuillen, Vincent Haugh, and Harold Boyer; and (3) Defendants Zaki Khebzou and Atlan-tic Emergency Associates (AEA). The Court notes that Defendants Atlanticare Regional Medical Cen-ter, Atlanticare MICU Medics at Base 3, and Atlantic City Medical Center have not moved for Summary Judgment at this time, but have moved to limit dam-ages as to their liability, which was decided in an Or-der and Opinion dated October 3, 2013. (Dkt. nos. 135, 136.)
1 The Court exercises federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
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I.
Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle City, Tracy Hottenstein, who was intoxi-cated at the time, fell off a public dock into the ocean below.2 As a result of some of the events that oc-curred after her disappearance, Tracy died.
2 On February 14, 2009, Tracy attended the Polar Bear Plunge in Sea Isle City with friends, and afterwards went to LaCosta Lounge and Ocean Drive bars. She was last seen departing the Ocean Drive bar on sur-veillance video sometime [**3] around 2:15 a.m., and was not seen again until a by-stander, Francis Haney, discovered her body early the next morning. For further details on Tracy's activities following the Polar Bear Plunge, see Hottenstein v. Sea Isle City, 793 F. Supp. 2d 688 (D.N.J. 2011).
Tracy was discovered less than six hours after her fall, at approximately 7:52 a.m., when Francis Haney placed a 911 call to report a body found on the Sea Isle City Marina boat launching ramp. (Pls.' Ex. 15; Pls.' Ex. 16 at 1.) At the instruction of the 911 dispatcher, Haney got "pretty close" to Tracy's body and ascertained that she was not breathing because he could not see her chest moving, but he did not check her pulse because he was unsure how to do so. (Pls.' Ex. 20 at 30-31; Pls.' Ex. 16 at 1-3.)
Over the course of the next thirty minutes, police and rescue personnel responded to the scene. Shortly after Haney's 911 call, Sea Isle City police officers arrived - Officer Thomas McQuillen was first to respond, and Officer Vincent Haugh and Sergeant Harold Boyer arrived fifteen to twenty seconds later. (Defs.' Sea Isle City Br. Ex. A at 53-54.) Upon his arrival at the scene, McQuillen immediately brought out his first aid [**4] materials to render aid to Tracy. (Defs.' Sea Isle City Ex. A at 68.) McQuillen first at-tempted to locate a pulse at her carotid artery but failed to find one. (Id. at 72-73.) Next, he looked at Tracy's chest and observed that it was not rising and falling. (Id.) In McQuillen's recollection, Boyer then attempted to locate Tracy's pulse, also at her carotid artery, but failed to find it as well. (Id.; Pls.' Ex. 2.) At his deposition, Haugh also reported that he checked for Tracy's pulse, and like his fellow officers, failed to find her pulse and recorded that fact in his report. (Defs.' Sea Isle City Ex. E at 30:10-16; Pls.' Ex. 4.) All three officers also recorded that Tracy's body was a pale, grayish color and was obviously cold. (See Pls.' Ex. 2-4.)
With these observations in hand, McQuillen and Boyer consulted with one another and concluded that Tracy was deceased.3 (Defs.' Sea Isle City Ex. A at 77) [*361] After making this determination, McQuillen, Boyer, and Haugh closed off the area around Tracy's body for preservation, treating it as a crime scene. (Id. at 106.)
3 Though they failed to include it in their re-ports, Boyer and McQuillen each noted that they observed additional discoloration [**5] on Tracy's body when recalling the scene at their depositions. (See Pls.' Ex. 2-4.). Specifi-cally, they observed areas of redness on Tra-cy's back and side, which they believed to be lividity, a condition where blood pools at the lowest lying portion of the body, and a sign that both understood as a condition indicating death. (Defs.' SIAC Ex. B at 128-29; Defs.' SIAC Ex. C at 150-53.).
Shortly after the scene around Tracy was cor-doned off, Phyllis Linn, Assistant Chief of the Sea Isle Ambulance Corps, arrived in her personal vehi-cle, even before an SIAC ambulance arrived. (Pls.' Ex. 1 at 39; Defs.' Sea Isle Ambulance Corps Ex. D at 8.) However, because the area around Tracy was treated as a crime scene, neither Linn nor SIAC per-sonnel were permitted to treat Tracy or approach her body. (Defs.' SIAC Br. at 5.) Linn was prohibited from getting any closer than fifteen to twenty feet from Tracy because of the yellow tape that the officers strung to preserve the scene. (Pls.' Ex. 1 at 41; Defs.' SIAC Ex. D at 8.) For the same reason, other mem-bers of the SIAC who arrived with the ambulance also failed to physically examine Tracy because they also could not cross the yellow tape; the SIAC [**6] report indicates that SIAC personnel were twenty feet away, and "EMS did not come in contact with the PT [patient]." (Pls.' Ex. 12 at 1.) In spite of the dis-tance, the SIAC report recorded that Tracy's body showed lividity. (Id.). From her vantage point at the perimeter, Linn also observed lividity, which she con-firmed in a conversation with Boyer, leading her to the conclusion that Tracy was deceased. (Pls.' Ex. 1 at 41, 45.)
Shortly after the arrival of the SIAC ambulance and personnel, paramedics also arrived at the scene. (Defs.' SIAC Ex. D at 9.) Like all the others at the scene, paramedics Michael Senisch and Frank Rocco were not permitted to come into physical con-tact with Tracy. (Defs.' Khebzou Ex. F at 78-81.) Senisch was, however, permitted to approach Tra-cy's body more closely, coming within six feet of her, according to his recollection. (Pls.' Ex. 17 at 46:10-
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11.) As described at his deposition, Senisch was called to the scene for a "pronouncement," which was reiterated to Senisch when he arrived at the scene, where Boyer informed him that Tracy was "pulseless and apneic," and "that [the paramedics] were called there for a pronouncement." (Id. at 44-45.) At 8:21 a.m., nine [**7] minutes after the para-medics' arrival at the scene, Senisch called Dr. Zaki Khebzou for the official death pronouncement. (Defs.' Khebzou Ex. E-F) Following Senisch's de-scription of Tracy's condition, Dr. Khebzou pro-nounced Tracy deceased by telephone at 8:22 a.m. (Pls.' Ex. 5.) It is unclear precisely when Tracy's body was finally removed from the scene on February 15.
In spite of this declaration of death, Tracy may not have been deceased at 8:22 a.m. Two experts, upon review of the facts and circumstances of the case, concluded that severe hypothermia may man-ifest symptoms that look akin to death. (Pls.' Ex. 7 at 11; Pls.' Ex. 6 at 10.) Moreover, the Plaintiffs point to inconsistencies between observations recorded in police reports (which omit statements regarding livid-ity, for example), as compared with the recollection of police officers, to suggest that Tracy's condition was not properly diagnosed. Regardless, there is no dispute that even prior to Dr. Khebzou's pronounce-ment, Tracy's body was cordoned off while the police investigated the scene and surroundings.
Defendants presently move for summary judg-ment on the claims remaining against them, includ-ing those asserted under [**8] state [*362] law theories of negligence and both federal and New Jer-sey state law civil rights claims. II.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judg-ment as a matter of law." Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of estab-lishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reason-able fact finder could return a verdict for the nonmov-ing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
III.
The Court first addresses the Motions for Sum-mary Judgment regarding the civil rights claims un-der both § 1983 and the New Jersey Civil Rights Act. Next, the Court addresses the Motions for Summary Judgment regarding claims of [**9] negligence as-serted against the City of Sea Isle City and individual police officers (the "municipal Defendants"). Third, the Court addresses the claims for negligence as-serted against Dr. Zaki Khebzou and Atlantic Emer-gency Associates, and then separately addresses claims for negligent hiring, supervision, and retention alleged against Sea Isle City and AEA. Fourth, the Court addresses the Motions for Summary Judgment on punitive damages. Finally, the Court addresses claims of premises liability asserted against Sea Isle City.4
4 The Court will not permit the reinstate-ment of New Jersey Civil Rights Act claims as to Defendant Khebzou. While Rule 15(a) per-mits the amendment of pleadings before trial, the Plaintiffs have requested reinstatement of their NJCRA claim without the consent of the opposing party. Fed. R. Civ. P. 15(a)(2). The Plaintiffs have not provided any rationale for why "justice so requires" the reinstatement of the claim. Id. Because the Plaintiffs cannot provide a rationale for the reinstatement of this claim at the close of discovery, even if this request for reinstatement were made in a Mo-tion to Amend, it would be denied.
A.
The Plaintiffs' Amended Complaint alleges [**10] three separate claims of civil rights violations under 42 U.S.C. § 1983. Count Ten alleges the mu-nicipal Defendants violated § 1983, Count Eleven brings a wrongful death and survival action pursuant to the statute against both the municipal Defendants and Linn and the Sea Isle Ambulance Corps, and Count Twelve alleges the municipal Defendants are liable under a theory of state-created danger. The Court considers these three claims and the corre-sponding Motions for Summary Judgment together.
Consideration of the Defendants' Motions for Summary Judgment on the Plaintiffs' § 1983 claims ordinarily presents two separate legal issues for lia-bility - first, whether the Defendants acted under color of law, and second, whether the Defendants vi-olated a constitutional right. Because the evidence produced in discovery does not demonstrate that a constitutional violation occurred, the Court need not
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consider the color of state law analysis and grants summary judgment for all Defendants on each count alleged under § 1983.
[*363] The Due Process Clause of the Four-teenth Amendment does not impose an affirmative right to governmental aid, "even where such aid may be necessary to secure life, liberty, or property [**11] interest of which the government itself may not deprive the individual." DeShaney v. Winnebago Cnty. Dept. of Social Svs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). In particular, "there is no federal constitutional right to rescue ser-vices, competent or otherwise." Brown v. Common-wealth of Pa. Dep't of Health, 318 F.3d 473, 478 (3d Cir. 2003). In light of DeShaney, there are two ex-ceptions to the general "non-liability rule." Id. "First, the state has a duty to protect or care for individuals when a 'special relationship' exists. Second, the state has a duty when a 'state-created danger' is in-volved." Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (internal footnote omitted).
Special relationships generally arise in custodial relationships; thus, the state and its "incarcerated or involuntarily committed citizens is the kind of 'special relationship'" that might require the state to provide adequate medical care and ensure the "reasonable safety" of involuntarily committed mental patients. Morrow v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Youngberg v. Romeo, 457 U.S. 307, 324, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982)). In other words, the state must affirmatively deprive the [**12] individual of the freedom to act "on his own behalf." Morrow, 719 F.3d at 168 (citing DeShaney, 489 U.S. at 200).
Here, the Plaintiffs have failed to provide evi-dence that any of the Defendants entered into a com-parable custodial relationship with Tracy. In particu-lar, Linn testified at her deposition that by the time she arrived, the police had already cordoned off Tra-cy's body and did not permit her to pass. (Pls.' Ex. 1 at 41.) The SIAC ambulance run report, summarizing the actions of the SIAC personnel, reflects the same. (Pls.' Ex. 12.) Though the Plaintiffs argue that Linn and SIAC personnel treated "Tracy's situation . . . like that of a pretrial detainee, a prisoner or an involun-tary commitment," there is no actual indication that Linn or SIAC were the ones who were responsible for the cordon. (Pls.' Br. at 22.) In other words, there is no evidence to suggest that Linn and SIAC were Tracy's custodians when they arrived at the scene.
Similarly, claims alleging that the police officers or Sea Isle City resulted in a special relationship are
not borne out in the facts produced in discovery. Though the Plaintiffs argue that the cordon surround-ing Tracy was akin to creating a custodial [**13] re-lationship, the cause of Tracy's incapacity was sep-arate from the actions of the police at the scene. (See Pls.' Ex. 6-7.) The Plaintiffs' experts describe a tragic combination of alcohol and cold weather that resulted in Tracy's death from hypothermia. (Pls.' Ex. 6 at 12; Pls.' Ex. 7 at 13-14.) As the Plaintiffs' experts explain, the alcohol and cold weather were the causes of Tracy's incapacity, not the stringing of yel-low tape. Thus, there was no special relationship be-tween Tracy and the municipal Defendants that would impose a duty to render aid.
Returning to the state-created danger theory of liability under § 1983, a constitutional violation "can occur when state authority is affirmatively employed in a manner that injures a citizen or renders him 'more vulnerable to injury'" than he would have oth-erwise been. Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir.)). A state-created [*364] danger exists when the plaintiff can demon-strate each of the following four elements:
(1) the harm caused was foreseea-ble and fairly direct, (2) a state actor acted with a degree of culpability that shocks the conscience, (3) [**14] a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defend-ant's acts . . . and (4) a state actor af-firmatively used his or her authority in a way that create a danger to the citi-zen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013).
The requisite culpability for a state-created dan-ger claim, the "shocks the conscience" standard, de-pends upon the circumstances of the state official's actions. Schieber v. City of Phila., 320 F.3d 409, 417 (3d Cir. 2003). "[C]ustomary tort liability" is insuffi-cient for demonstrating the necessary culpability, as the "Constitution does not guarantee due care on the part of state officials," while circumstances where state actors affirmatively intend to cause harm are on the opposite end of the spectrum, satisfying the "shocks the conscience" standard. Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848-49, 118
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S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). To deter-mine the level of culpability necessary to shock the conscience, the Court must consider whether the state officials had the opportunity to deliberate and make unhurried judgments. [**15] Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir. 2006). Where such time exists, conscious disregard of a great risk of harm is all the culpability necessary. Id. at 310. On the other hand, where state officials must make decisions in a "hyperpressurized environment," an intent to cause harm is necessary to satisfy the culpability standard. Id. at 309.
Under the facts produced during discovery, none of the municipal Defendants' actions approach the "shocks the conscience" standard. Upon arriving first at the scene, McQuillen brought out his oxygen and medical bag from his trunk, (Defs.' Sea Isle City Ex. A at 63:23-24), and then each of the police officers attempted to take Tracy's pulse at the carotid artery. (Pls.' Ex. 2-4.) Each observed her to be "grayish" in appearance and all three concluded that she was dead based on their observations. (Id.) Their actions upon arrival at the scene demonstrate that they at-tempted to render aid, and when such attempts ap-peared futile, treated the area as a crime scene. These actions manifest neither a conscious disre-gard of risk nor an intent to cause Tracy harm.5
5 Moreover, even if the Plaintiffs could demonstrate that the municipal Defendants' actions [**16] shocked the conscience, these Defendants would still be entitled to the defense of Qualified Immunity, established under Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Expand-ing upon the two-part test for Qualified Im-munity, the Saucier Court explained that "[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on partic-ular police conduct." Id. at 205. As the Court continued, "[i]f the officer's mistake as to what the law requires is reasonable, . . . the officer is entitled to the immunity defense." Id. The Plaintiffs have provided no evidence that the municipal Defendants undertook any unrea-sonable acts: the officers (including one who was a certified EMT) arrived on the scene, im-mediately checked for a pulse and observed Tracy's grayish coloring and lack of move-ment, and determined that she was not alive. (Defs.' Sea Isle City Ex. A at 69:23-24; Pls.' Ex. 2-4.) Even assuming that Tracy were alive, as the Plaintiffs' experts conclude was
"possible," [**17] the police acted reasona-bly under the circumstances by immediately responding and checking Tracy's pulse and breathing, thereby granting them the protec-tion of Qualified Immunity.
[*365] Similarly, Linn and SIAC's actions fail to reach the "shocks the conscience" culpability stand-ard to satisfy a state-created danger claim. As Linn's deposition testimony explained, she responded in approximately ten minutes to the initial 911 call. (Pls.' Ex. 1 at 38:25.) Upon arriving at the scene, Linn walked up to the cordon, attempted to cross it and reach Tracy, but was stopped by a police officer be-fore Sergeant Boyer approached her to relay the news that the area had been deemed a crime scene. (Id. at 41:2-19.) Linn and Boyer discussed their ob-servations of lividity on Tracy's body, and Linn knew that Boyer was a certified EMT who had been on scene for some time already. (Id. at 41:14-44:19.) None of these actions manifest a level of culpability suggesting that Linn consciously disregarded a great risk of harm to Tracy, nor do they suggest that Linn intended to harm Tracy. Similarly, the SIAC Report indicates that SIAC personnel received a report from the police that Tracy was dead upon their arrival. [**18] (Pls.' Ex. 12.) The police reported to SIAC per-sonnel that Tracy displayed lividity, had "foam com-ing from mouth, [and] eyes extremely dilated." (Id.) Their failure to render aid was a result of the police judgment that the area should be a crime scene, not because SIAC personnel sought to consciously put Tracy at risk, nor because of an intent to harm her. In other words, the Plaintiffs have failed to produce any evidence suggesting that Linn or SIAC person-nel manifest the culpability necessary to constitute a state-created danger.
In short, at the close of discovery, the Plaintiffs have failed to produce evidence that any of the De-fendants held the culpable mindset necessary to commit a constitutional violation. In light of this, the Court will grant summary judgment in favor of all De-fendants in the civil rights claims in Counts Ten, Eleven, and Twelve. B.
Count Thirteen asserts a claim against the mu-nicipal Defendants, Linn, and SIAC for a violation of the New Jersey Civil Rights Act. Because the NJCRA is interpreted analogously with § 1983 and the foregoing analysis explains that no predicate § 1983 claim exists, summary judgment will be granted in favor of all the Defendants.
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In [**19] relevant part, the New Jersey Civil Rights Act provides:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or im-munities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been in-terfered with or attempted to be inter-fered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for other injunctive or other appropriate relief.
N.J.S.A. 10:6-2(c). "This district has repeatedly inter-preted NJCRA analogously to § 1983." Pettit v. New Jersey, 2011 U.S. Dist. LEXIS 35452, 2011 WL 1325614, at *3 (D.N.J. 2011). The Plaintiffs properly point out that the NJCRA has a "broad remedial pur-pose." Owens v. Feigin, 194 N.J. 607, 947 A.2d 653, 656 (N.J. 2008). However, the NJCRA and § 1983, when pled together, are analyzed under the same standard; first, the Defendant must have acted under color of state law, and second, the Defendant must have violated a constitutional right. Pettit, 2011 U.S. Dist. LEXIS 35452, [*366] 2011 WL 1325614 at *4; see also Hottenstein v. Sea Isle City, 793 F. Supp. 2d 688, 695 (D.N.J. 2011).
Putting [**20] aside the color of state law anal-ysis, the record and foregoing analysis do not demonstrate that any of the municipal Defendants nor Linn and the SIAC deprived Tracy of her consti-tutional rights. Thus, just as the Defendants have demonstrated they are entitled to summary judgment on Counts Ten, Eleven, and Twelve, they are simi-larly entitled to summary judgment on the accompa-nying NJCRA claim in Count Thirteen. C.
Counts One, Six, and Seven allege claims of negligence against each of the municipal Defend-ants. Specifically, Count One alleges negligence against each Defendant, Count Six alleges a survival action based upon negligence, and Count Seven al-leges a wrongful death action based upon negli-gence. The municipal Defendants argue that they are entitled to summary judgment on each of these
counts because their actions are protected by the Good Faith Immunity provision of the New Jersey Tort Claims Act. Because the record demonstrates that the Defendants acted in an objectively reasona-ble fashion and with subjective good faith, they are entitled to the protection of good faith immunity and summary judgment is granted in favor of the munici-pal Defendants on these three claims alleging [**21] negligence.
The New Jersey Tort Claims Act provides public employees immunity from suit. N.J.S.A. 59:3-3. Spe-cifically, "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public em-ployee from liability for false arrest or false imprison-ment." Id. A public employee can satisfy the good faith requirement either by demonstrating "objective reasonableness," or that the public employee be-haved with "subjective good faith." Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693, 703 (N.J. 2001) (quoting Fielder v. Stonack, 141 N.J. 101, 661 A.2d 231, 246 (N.J. 1995)).
However, even in spite of good faith immunity, public employees may lose the protection of immun-ity when they fail to provide emergency medical treatment to individuals in their custody. See Del Tufo v. Twp. of Old Bridge, 278 N.J. Super. 312, 650 A.2d 1044 (N.J. Super. App. Div. 1995). In Del Tufo, a decedent's estate brought a wrongful death action against the police officers who arrested the dece-dent, on the theory that officers' failure to provide emergency aid to the decedent was the proximate cause of death. Id. at 1046-47. In particular, the po-lice observed the decedent's erratic [**22] behavior and injuries, yet waited nearly an hour to summon medical care for treatment. Id. at 1046-47. The New Jersey Supreme Court rejected the police officers' contention that they were entitled to good faith im-munity, holding that "[t]heir duty to execute or en-force the law did not preclude them from providing emergency medical assistance to their arrestee. The immunity for enforcing and executing the law does not protect defendants." Id. at 1051; see also Rosario v. City of Union City Police Dept., 131 Fed. Appx. 785, 790 (3d Cir. 2005) (explaining application of good faith immunity).
The municipal Defendants have credibly demon-strated that they acted with subjective good faith and objectively reasonable under the circumstances. For example, McQuillen was first to arrive on the scene and responded with oxygen and a medical bag that he carried in his trunk. (Defs. Ex. A at 69-70.) All three attempted to take Tracy's pulse, and after fail-ing to find one and observing her body to be [*367]
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"cold" and "grayish," the officers determined that Tracy was deceased and began preserving the area as a crime scene. (Pls.' Ex. 2-4.)
Moreover, in viewing the facts in the light most favorable to the Plaintiffs, [**23] there is no ground to reject the Defendants' claim for good faith immun-ity. There is no allegation in the record that the offic-ers affirmatively ignored Tracy's condition. Rather, the record reflects that the officers immediately re-sponded to the 911 call and attempted to render the necessary care to an unconscious victim, and after determining that Tracy lacked a pulse, they provided that information to Linn and the SIAC, as well as the paramedics when they arrived on scene. (See Pls.' Ex. 1 at 41; Ex. 2-4; Ex. 17 at 43.) In light of these circumstances, the officers did not fail to render med-ical care nor did they withhold medical care from an individual in their custody that obviously required such care. Thus, the officers are entitled to the pro-tections of good faith immunity provided by N.J.S.A. 59:3-3 and therefore the Court will grant summary judgment in favor of McQuillen, Boyer, Haugh, and the City of Sea Isle City on Counts One, Six, and Seven. D.
Defendant Zaki Khebzou seeks summary judg-ment in his favor on Counts One, Six, Seven, and Nine, each of which alleges that Kebzou was negli-gent. The facts produced in discovery do not provide grounds for granting Khebzou summary judgment [**24] on any of these claims.
Under New Jersey law, a plaintiff in a medical malpractice action must prove three elements: (1) there is an applicable standard of care, (2) a devia-tion from that standard occurred, and (3) the devia-tion was the proximate cause of the harm sustained by the plaintiff. Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042, 1055-56 (N.J. 2004). Where a "defend-ant's negligence combines with a preexistent condi-tion to cause harm," New Jersey has adopted the substantial factor standard. Id.; Flood v. Aluri-Val-labhaneni, 431 N.J. Super. 365, 70 A.3d 665, 671 (N.J. Super. Ct. App. Div. 2013). The substantial fac-tor test requires the Court to inquire "whether the de-fendants' deviation from the standard medical prac-tice increased a patient's risk of harm or diminished a patient's chance at survival and whether such in-creased risk was a substantial factor in producing the ultimate harm." Verdicchio, 843 A.2d at 1056 (quot-ing Gardner v. Pawliw, 150 N.J. 359, 696 A.2d 599, 608 (N.J. 1997)).
When appropriately applied, the substantial fac-tor test requires the plaintiff to first demonstrate that the defendant's negligence "actually increased the risk of an injury that later occurs." Verdicchio, 843 A.2d at 1056. Following that, [**25] the jury must then determine whether "the increased risk was a substantial factor in bringing about the harm that oc-curred." Id. In Verdicchio, the decedent and his sur-vivors filed a lawsuit alleging medical malpractice in failing to provide a timely diagnosis of the decedent's cancer. Id. at 1046. To satisfy the substantial factor test, the plaintiffs "were required only to show that [the doctor's] failure to perform an examination that would have led to the discovery of the cancer in-creased the risk that [the decedent] would lose the opportunity for treatment at an earlier stage." Id. at 1062. In other words, plaintiffs asserting a medical malpractice claim in a substantial factor case need to demonstrate that the defendant's actions in-creased the plaintiff's risk of harm; whether the de-fendant actually was a substantial factor in that harm is left to the jury.
[*368] Despite Khebzou's arguments, the Plaintiffs have produced sufficient evidence in dis-covery to suggest that Khebzou's behavior may con-stitute negligence increasing Tracy's risk of harm. To pronounce a patient deceased outside of a hospital, "[a] physician may specify another physician or may arrange with a professional nurse [**26] (R.N.) or a paramedic in accordance with N.J.A.C. 8:41-3.9, which requires the relay of findings, including telem-etered electrocardiograms, if feasible to attend to the presumed decedent and make the determination and pronouncement." N.J.A.C. 13:35-6.2(d) (empha-sis added). At his deposition, Khebzou acknowl-edged that he knew of the N.J.A.C. provision requir-ing that he receive such test results, if they could fea-sibly be provided. (Pls.' Ex. 25 at 140-41.) Nonethe-less, Khebzou declared Tracy deceased at 8:22 a.m., after Boyer, Haugh, and McQuillen checked unsuccessfully for a pulse, but without any physical contact or examination by SIAC personnel or para-medics. (Pls.' Ex. 2-4.) Khebzou's pronouncement was based upon a phone call from the paramedics, who indicated that "[p]olice wishes us to preserve the scene. . . . We have not hooked the patient up but I do see irreversible signs of death." (Pls.' Ex. 5). Given that Tracy may have been alive at 8:22 a.m., (Pls.' Ex. 6 at 11; Pls.' Ex. 7 at 11) Khebzou's pro-nouncement of death may have been premature and cut off Tracy's opportunity to receive medical care.6 The Plaintiffs therefore have produced sufficient evi-dence to suggest that [**27] Khebzou's actions were a substantial cause of Tracy's harm, thereby
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satisfying the substantial factor test. Summary judg-ment in Khebzou's favor would therefore be inappro-priate.
6 For similar reasons, Khebzou's argument that any liability should be reduced based on his portion of the fault is not appropriate for summary judgment. Assuming that the fact finder at trial determines that Khebzou's neg-ligence was a substantial factor in the Plain-tiffs' harm, "a defendant nonetheless has the 'burden of segregating recoverable damages from those solely incident to the preexisting disease.'" Anderson v. Picciotti, 676 A.2d 127, 144 N.J. 195, 212 (N.J. 1996) (quoting Fos-gate v. Corona, 66 N.J. 268, 330 A.2d 355, 358 (N.J. 1974)). Khebzou argues that the Plaintiffs' expert put Tracy's chance of survival at 10-33% and thus Khebzou's liability should be limited to this range. (Pls.' Ex. 12 at 5; Defs. Br. at 22.). However, such a judgment would be inappropriate at this time, as the de-fendant clearly bears the burden of segregat-ing such damages and Khebzou has failed to produce any facts of his own apportioning lia-bility.
E.
Khebzou's employer, Defendant Atlantic Emer-gency Associates, also moves for summary judg-ment on Counts [**28] One, Three, Six, and Seven. Counts One, Six, and Seven allege negligence, a survival action premised upon negligence, and wrongful death premised upon negligence. Count Three alleges vicarious liability for AEA's employee, Khebzou. Because the material facts regarding Khebzou's negligence are still in dispute and princi-ples of respondeat superior may apply to such claims, summary judgment for vicarious liability is in-appropriate at this time. However, summary judg-ment will be granted in AEA's favor as to all direct claims of negligence.
Respondeat superior permits the imposition of li-ability on an employer for the negligence of an em-ployee that causes harm to a third party, "if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter v. Reynolds, 175 N.J. 402, 815 A.2d 460, 463 (N.J. 2003) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 462 (N.J. 1993)). To properly es-tablish such liability, a plaintiff must establish two el-ements: (1) a master-servant [*369] relationship
existed, and (2) "the tortious act of the servant oc-curred within the scope of that employment." Carter, 815 A.2d at 463.
At this time, there are no facts in dispute regard-ing the vicarious [**29] liability of AEA. AEA acknowledges that it was Khebzou's employer "at the time of the incident at issue in this case and therefore may be vicariously liable for the defend-ant's [Khebzou's] actions." (Def. Br. at 26 n.3.) In the event Khebzou is held liable for his own negligent acts at trial, the Plaintiffs may pursue claims of vicar-ious liability against AEA as Khebzou's employer at the time of Khebzou's negligent acts. Therefore, this Court cannot grant summary judgment in favor of the Defendants for claims of vicarious liability for the acts of Khebzou that may ultimately be deemed negli-gence.
However, even viewing the evidentiary record in the light most favorable to the Plaintiffs, the record fails to demonstrate a link between AEA's allegedly negligent behavior and the harm sustained by the Plaintiffs. The Plaintiffs point to the conclusions of their expert, Dr. Paul Auerbach, asserting that AEA "negligently breached [its] duty to implement policies to assure the proper treatment of this hypothermic patient." (Pls.' Ex. 7 at 13.) Dr. Auerbach's conclu-sion, however, only acknowledges that it is "possible that [AEA] unnecessarily allowed the progression of a grievous medical situation," [**30] and contrib-uted to Tracy's death. (Id.) This conclusion falls short of explaining how AEA's missing policies were a sub-stantial cause of the hypothermia, contracted be-tween 2:15 a.m. and 7:52 a.m., which was ultimately determined to be the cause of Tracy's death. (Pls.' Ex. 6 at 12, ¶ 1.) Because the evidentiary record fails to demonstrate that AEA's missing policies were a substantial cause of Tracy's death from hypothermia, the Court will grant summary judgment in favor of Defendants for all direct claims of negligence alleged in Counts One, Six, and Seven. F.
Defendants Sea Isle City and AEA each move for summary judgment in their favor on Count Two, which alleges a claim of negligent hiring, supervision, and retention. Because the Plaintiffs have failed to demonstrate that the Defendants had any knowledge about the unfitness or incompetence of their employees, summary judgment will be granted in their favor on Count Two.
Under New Jersey law, the tort of negligent hir-ing, supervision, and retention requires the satisfac-
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tion of two elements. First, the plaintiff must demon-strate that the employer "knew or had reason to know of the particular unfitness, incompetence or danger-ous attributes [**31] of the employee and could rea-sonably have foreseen that such qualities created a risk of harm to other persons." Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 516 (N.J. 1982); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 692 A.2d 61, 65-65 (N.J. Super. App. Div. 1997). Second, the plaintiff must show that as a result of the employ-er's negligent hiring, the employee's "incompetence, unfitness or dangerous characteristics," were the proximate cause of the plaintiff's injuries. Di Cosala, 450 A.2d at 516.
At the close of discovery, the Plaintiffs have failed to produce any evidence demonstrating AEA's knowledge of Khebzou's unfitness, incompetence, or dangerous attributes as an employee. At most, the Plaintiffs have shown that their experts believe AEA failed to impose appropriate policies for treating hy-pothermic patients, thereby breaching AEA's duty of [*370] care to Tracy. (Pls.' Ex. 7 at 13.) However, even assuming that AEA did breach such a duty of care, any such breach would still fail to make out a prima facie case of negligent hiring, supervision, and retention. Therefore, the Court will grant summary judgment in favor of AEA on Count Two.
Similarly, the Plaintiffs have failed to produce any evidence demonstrating [**32] the City of Sea Isle City's knowledge of its employees' unfitness, in-competence, or dangerous attributes as employees. While the evidentiary record reflects the Plaintiffs' ex-pert's opinion that the Sea Isle City Police Depart-ment failed put in place certain policies regarding the treatment of hypothermia victims, nothing in the rec-ord reflects any knowledge of McQuillen, Haugh, or Boyer's unfitness, incompetence, or dangerous at-tributes as employees of the police department. Thus, the Plaintiffs have failed to demonstrate the prima facie case for the tort of negligent hiring, and Defendant Sea Isle City must be granted summary judgment in its favor on Count Two. G.
Defendants Khebzou, AEA, Sea Isle City, Boyer, McQuillen, and Haugh seek summary judgment in their favor on claims seeking punitive damages. The Defendants argue that the Plaintiffs have produced no facts supporting a punitive damages award. The Court is skeptical of the Plaintiffs' ultimate success on claims for punitive damages, but viewing the facts in the light most favorable to Plaintiffs, declines to grant summary judgment at this time.
Under New Jersey's Punitive Damages Act,
[p]unitive damages may be awarded to the [**33] plaintiff only if the plaintiff proves, by clear and con-vincing evidence, that the harm suf-fered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any de-gree of negligence including gross negligence.
N.J.S.A. 2A:15-5.12(a). Negligence, "no matter how gross," cannot form the basis of an award for punitive damages, and therefore a plaintiff must demonstrate that the defendant's act was "wanton and willful" by showing "a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences." Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243, 254 (N.J. 1999); see also Cruz v. Atco Raceway, 2013 U.S. Dist. LEXIS 90414, 2013 WL 3283964, at *6-7 (D.N.J. June 27, 2013) (holding that defendant's de-liberate indifference to New Jersey safety regulations and knowledge of the severe consequences for fail-ure to follow such regulations would permit a reason-able jury to find wanton and willful conduct).
The record evidence, viewed in the light most fa-vorable [**34] to the Plaintiffs, supports a reasona-ble conclusion that Khebzou deliberately ignored New Jersey regulations for the pronouncement of death outside of a hospital.7 (Pls.' Ex. 25 at 140-41.) Khebzou learned from the paramedic that Tracy dis-played signs of death, but had not been "hooked up." (Pls.' Ex. 5) Without asking any further [*371] questions, Khebzou elected to declare Tracy de-ceased anyway, even though he knew New Jersey regulations for declaring a patient deceased required such test results, if feasible, and therefore did not fol-low those regulations. (Pls.' Ex. 25 at 140-41.) Though the record is not clear whether Boyer, McQuillen, and Haugh deliberately ignored the regu-lation, the Plaintiffs have demonstrated that the De-fendants cordoned off Tracy's body and determined her to be deceased without a pronouncement of death. (Pls.' Ex. 23 at 49-50; see also Pls.' Ex. 26 at 146-47; Pls.' Ex. 29 at 30-31.) Rather, McQuillen and Boyer consulted with each other after failing to find a
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pulse on Tracy and concluded that she was de-ceased. (Defs. Sea Isle City Ex. A at 77)
7 N.J.A.C. 13:35-6.2 requires a paramedic or other medical professional to relay the find-ings of "telemetered electrocardiograms, [**35] if feasible" to the physician making the declaration of death.
In short, the record evidence, viewed in the light most favorable to the nonmoving parties for sum-mary judgment, permits a reasonable conclusion that the Defendants' actions may have constituted a wan-ton and willful act within the bounds of the Punitive Damages Act. Whether the evidence adduced at trial only demonstrates negligence, which would prohibit punitive damages under the terms of the statute, is unclear at this point but may be addressed again upon appropriate motion at trial. H.
Defendant Sea Isle City moves for summary judgment on Count Four, which alleges premises li-ability based upon a dangerous and defective condi-tion in the public marina where Tracy was discov-ered. Because the evidentiary record does not demonstrate that Tracy's harm was the proximate cause of a dangerous condition in the Marina, sum-mary judgment will be granted in favor of the Defend-ant.8
8 Initially, Sea Isle City argues that the Plaintiffs' expert report must be excluded as a net opinion under New Jersey law. A net opin-ion is an expert opinion that is not based "on a proper factual foundation." Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157 (N.J. 1981). [**36] However, the admissibil-ity of expert testimony in federal court is gov-erned by the standards of Federal Rule of Ev-idence 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Whether New Jer-sey standards of admissibility should be fol-lowed in light of Rule 702 is moot, as the evi-dentiary record fails to demonstrate the al-leged dangerous condition was a proximate cause of Tracy's harm.
The New Jersey Tort Claims Act governs the li-ability of public entities for alleged dangerous condi-tions of public lands. To impose liability, a plaintiff must show that the property was in a dangerous con-dition at the time of the injury, the injury was proxi-mately caused by the dangerous condition, and the
dangerous condition created a "reasonably foresee-able risk of the kind of injury which was incurred." N.J.S.A. 59:4-2. In addition, a plaintiff must show that either an employee of the public entity acting within the scope of his employment created the dangerous condition, or that the public entity had actual or con-structive notice of the dangerous condition with enough time to have corrected it before the incident in question. Id. Finally, the Act grants the public entity immunity from [**37] liability "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Id.
The Court focuses on issues of causation in de-termining that the record evidence, even when viewed in the light most favorable to the Plaintiffs, fails to satisfy the requirements of the Act. The Plain-tiffs' expert report fails to address how the allegedly dangerous conditions of the Sea Isle City Marina caused Tracy's harm. (See Pls.' Ex. 31.) While the report [*372] details both likely and unlikely sce-narios, none of the scenarios actually explain how Tracy fell at the Marina. (Id. at 10-11.) In the "likely scenario," the Plaintiffs' expert asserts that Tracy "fell from the bulkhead onto the edge of a floating dock below[,] near slip 73, and then fell from the floating dock into the water." (Id.) Under the more unlikely scenarios, the Plaintiffs' expert asserts that Tracy may have lost her balance or slipped between float-ing docks. (Id.) In either case, the expert testimony fails to determine the cause of Tracy's fall or how she lost her balance and fell. In the absence of any evi-dence in the record demonstrating her fall, the Plain-tiffs have failed [**38] to demonstrate that the dan-gerous condition of the Marina could have been a proximate cause of Tracy's harm. Because the Plain-tiffs have failed to show that the dangerous condition in the Marina was a proximate cause of Tracy's harm, Sea Isle City is entitled to summary judgment on the premises liability claim in Count Four. IV.
In conclusion, the circumstances of Tracy Hot-tenstein's death are undoubtedly tragic but remain unclear at the close of discovery. In light of the facts developed in the evidentiary record, and for the spe-cific reasons stated above, (1) Defendants Sea Isle Ambulance Corps and Phyllis Linn's Motion for Sum-mary Judgment will be fully granted on the civil rights claims alleged against them; (2) Defendants City of Sea Isle City, Thomas McQuillen, Vincent Haugh, and Harold Boyer Motion for Summary Judgment will be fully granted, covering (a) the civil rights claims under both § 1983 and the New Jersey Civil Rights Act, (b) premises liability claims, and (c) negligent
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hiring, supervision, and retention, and (d) negligence alleged in Counts One, Six, and Seven; and (3) De-fendants Zaki Khebzou and Atlantic Emergency As-sociates Motion for Summary Judgment will be granted [**39] as to claims of negligent hiring and direct negligence against AEA, and denied as to the direct negligence of Khebzou and the vicarious liabil-ity of AEA. An appropriate Order accompanies this Opinion.
Date: 10/11/13
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J. ORDER
IRENAS, Senior United States District Judge:
This matter having appeared before the Court upon Defendants' Motion for Summary Judgment (Docket # 114, 115, and 116), and the Court having considered the submissions of the parties, having heard oral argument on September 24, 2013, for the reasons set forth in an Opinion issued by this Court on even date herewith, and for good cause appear-ing;
IT IS on this 11th day of October, 2013,
ORDERED THAT:
(1) Defendants' Sea Isle Ambulance Corps and Phyllis Linn Motion for Sum-mary Judgment (Docket #114) is hereby GRANTED.
(2) Defendants City of Sea Isle City, Thomas McQuillen, Vincent
Haugh, and Harold Boyer's Motion for Summary Judgment (Docket #115) is hereby GRANTED.
(3) Defendant Atlantic Emergency Associates's Motion for Summary Judgment (Docket #116) is hereby GRANTED as to claims of direct negli-gence and negligent hiring in Counts One, Two, Six, Seven, and Nine of the Amended Complaint (Docket # 92), and hereby DENIED as to vicarious li-ability in Count Three.
(4) Defendant Zaki Khebzou's Mo-tion for Summary Judgment (Docket #116) is hereby DENIED as to direct negligence alleged in Counts One, Six, Seven, and Nine of the Amended Com-plaint (Docket # 92).
(5) Counts One, Two, Three, Six, and Seven of the Amended Complaint (Docket # 92), alleging negligence and vicarious liability against Defendants Atlanticare Regional Medical Center, Atlanticare MICU Medics at Base 3, and Atlantic City Medical Center, are subject to this Court's Order and Opin-ion (Docket # 135, 136) with regard to any eventual determination of liability against those Defendants.
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
165
PUTTING CIVILITY BACK IN CIVIL LITIGATION
By: Debra V. Urbanowicz-Pandos, Esq.
I. Bounds of Representation – Evolution of Diligence CANON 7 A Lawyer Should Represent a Client Zealously Within the Bounds of the Law (ABA Model Code of Professional Responsibility) (1969-1983) A lawyer shall act with reasonable diligence and promptness in representing a client. (ABA Model Rules of Professional Conduct Rule 1.3)(1983) (RPC 1.3) (1984)
Rule 1.3 Diligence – ABA Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
II. Civility, Professionalism and Respect a. Broad decline in professionalism
The New Jersey Commission on Professionalism in the Law is a venture of the NJSBA, the state and federal judiciary, and New Jersey's three law schools formed in response to increasing displeasure within the bar.
The Professionalism Counseling Program (1997) addresses conduct by lawyers that does not rise to the level of a violation of the ethics rules (the Rules of Professional Conduct).
b. Job dissatisfaction
Needless stress created by aggressive tactics reducing job satisfaction in the legal profession. Essential Qualities of the Professional Lawyer, Chap. 3 CIVILITY AS THE CORE OF PROFESSIONALISM, p. 41 (2013) Raymond M. Ripple, Learning Outside the Fire: The Need for Civility Instruction in Law School, 15 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY Issue 1, 359-382 (2014)
III. Aggressive Advocacy vs. Zealous Advocacy
Zealous – “Full of zeal; ardent, fervent; exhibiting enthusiasm or strong passion. American Heritage Dictionary
167
Rambo Lawyer – “a litigator who uses aggressive, unethical or illegal tactics in representing a client and who lacks courtesy and professionalism in dealing with other lawyers.” USLegal.com, Rambo Lawyer Law & Legal Definition.
Dirty Tactics: Scorched Earth Practice; Hiding or failing to produce material during discovery; Frivolous objections to discovery; Improper deposition conduct; Name calling or using abusive language; and impermissible comments at trial.
- When summation “cross[es] the line beyond fair advocacy [or] comment,” and instead is
directed and designed to improperly influence the jury's decision, “the trial judge must take action.” (citation and internal quotation marks omitted). Jones v. Alloy, A-0565-13T2, 2014 WL 7883578, at *13 (N.J. Super. Ct. App. Div. Feb. 18, 2015) (New trial ordered for counsel’s inappropriate comments at summation)
IV. Core Principles of Civility (1) recognize the importance of keeping commitments and of seeking agreement
and accommodation with regard to scheduling and extensions; (2) be respectful and act in a courteous, cordial, and civil manner; (3) be prompt, punctual, and prepared; (4) maintain honesty and personal integrity; (5) communicate with opposing counsel; (6) avoid actions taken merely to delay or harass; (7) ensure proper conduct before the court; (8) act with dignity and cooperation in pre-trial proceedings; (9) act as a role model to client and public and as a mentor to young lawyers; and (10) utilize the court system in an efficient and fair manner.
Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 GONZAGA LAW REVIEW 99–146, 146 (2011).
V. Future of Civility in New Jersey New Jersey Supreme Court Special Committee of Attorney Ethics and Admissions recommendations. Proposed modification of RPC 3.2 and inclusion of new provision, RPC 8.4(h) (h) A lawyer shall treat with courtesy and respect all persons involved in the legal process. Official Comment: Lawyers shall not file a grievance alleging violation of Rule of Professional Conduct 8.4(h) solely to obtain leverage in litigation or any other disputed matter. Such grievances shall not be filed until any underlying litigation or dispute is completed or resolved.
168
Who are you representing?
•Plaintiff
•Defendant
• ER nurse
•Wound consultant
•Nursing home staff nurse
What do you need to establish?
•Deviation from SOC
•SOC met
What relevant experience does the doctor have?•General
• Supervises nurses
• Trains nurses•Works or has worked alongside nurses in the same or similar setting
• Specific
•Medical Director
•Hospital
•Nursing Home
What does the Court say?
• Lauckhardt v. Jeges, No. A‐1970‐13T4, 2015 WL 6132987, at *8 (N.J. Super. Ct. App. Div. Oct. 20, 2015)
• “adequate knowledge of the SOC applicable”
• relevant setting
Q: Can doctors set the standard of care for nurses?A: It depends …
Alexis Aloi Graziano, Esquire
169
---- Reprinted with permission of LexisNexis.
DIANE LAUCKHARDT, individually and as administratrix ad prosequendum of the estate of
DOUGLAS LAUCKHARDT, Plaintiff-Appellant, v.
JANOS JEGES, M.D., I. BENENSON, R.N., KAREN GABOR, R.N., and ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL –
NEW BRUNSWICK, Defendants-Respondents, and ROBERT VAN VOLKENBURGH, M.D., Defendant.
DOCKET NO. A-1970-13T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2015 N.J. Super. Unpub. LEXIS 2393
September 16, 2015, Argued October 20, 2015, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS. SUBSEQUENT HISTORY: Certification denied by Lauckhardt v. Janos, 2016 N.J. LEXIS 268 (N.J., Mar. 8,
2016) Certification denied by Lauckhardt v. Janos, 2016 N.J.
LEXIS 286 (N.J., Mar. 8, 2016) Certification denied by Lauckhardt v. Janos, 2016 N.J.
LEXIS 274 (N.J., Mar. 8, 2016) PRIOR HISTORY: [*1] On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0799-09. CORE TERMS: nurse, emergency, trauma, nursing, patient, chest, qualification, x-ray, scan, emergency room, standard of care, expert testimony, medicine, blood pressure, vital, doctor, pain, deviation, remember, citation omitted, training, limine, video, laches, heart rate, arrival, oxygen, chart, lung, rib COUNSEL: Christopher A. DeAngelo argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. DeAngelo, on the briefs; Andrew M. Rockman and E. Elizabeth Sweetser, of counsel and on the briefs; Bruce H. Zamost, of counsel).
Gary L. Riveles argued the cause for respondent Janos Jeges, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, on the brief). Joseph A. DiCroce argued the cause for respondents I. Benenson, R.N., and Robert Wood Johnson University Hospital (Law offices of Joseph A. DiCroce, LLC, at-torneys; Janice B. Venables and Jennifer M. Cooley, on the brief). Walter F. Kawalec, III, argued the cause for respondent Karen Gabor, R.N. (Marshall, Dennehey, Warner, Cole-man & Goggin, attorneys; Mr. Kawalec, on the brief). JUDGES: Before Judges Reisner, Hoffman and Whip-ple. OPINION
PER CURIAM
Plaintiff Diane Lauckhardt, individually and as ad-ministrator of the estate of her late husband, Douglas Lauckhardt (Mr. Lauckhardt), appeals from the no cause jury verdict returned in the medical malpractice case against defendant Janos Jeges, M.D., an emergency room (ER) physician. She also appeals from [*2] three or-ders1 entered during trial, which resulted in the dismissal of plaintiff's complaint against Robert Wood Johnson University Hospital -- New Brunswick (the Hospital) and two emergency room nurses, defendants Irina Benenson,
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R.N. and Karen Gabor, R.N. Plaintiff principally con-tends that the trial court erred in excluding certain expert testimony. Following our review of the record and ap-plicable law, we reverse and remand for a new trial.
1 The first two orders, entered on November 6, 2013, barred plaintiff's emergency medicine ex-pert from testifying as to "any deviations from standards of nursing care" committed by either defendant nurse. After plaintiff rested, the trial court granted involuntary dismissal motions of the Hospital and defendant nurses. R. 4:37-2(b). Before trial, the parties stipulated that there were no direct claims against the Hospital. The appel-late record does not contain the order dismissing the nurses or the Hospital from the case.
I.
We begin by summarizing the most pertinent trial evidence. At 4:59 p.m. on May 27, 2008, emergency medical technicians (EMTs) arrived at a business in Middlesex, where Mr. Lauckhardt was employed as a maintenance machinist. Mr. Lauckhardt [*3] told EMT Tracy Coble he "fell from the ladder that he was standing on top of[,] working on the ceiling" and his chest hit the cement floor. The ladder was ten to twelve feet high. Mr. Lauckhardt complained of chest pain and had difficulty breathing, but remained conscious. EMT Coble meas-ured Mr. Lauckhardt's blood pressure at 180/62, which she believed was abnormally high. She also heard di-minished lung sounds on Mr. Lauckhardt's left side, suggesting possible internal bleeding or puncture wounds.2
2 EMT Coble testified that she was with Mr. Lauckhardt "the whole time I was there" in the Hospital, before she left at 6:02 p.m. Describing his appearance, she stated that "[h]e was in ex-cruciating pain. He was pale. He was diaphoretic which means sweaty, clammy. He was very un-comfortable. He was somewhat coherent, still talking to me at that point." Dr. Jeges denied knowing that EMT Coble described Mr. Lauck-hardt's pain as "excruciating."
Paramedics arrived within minutes of the EMTs, and administered oxygen and stabilized Mr. Lauckhardt, be-fore rushing him by ambulance to the Hospital, a lev-el-one trauma center. Paramedic (PM) Michelle Slattery accompanied Mr. Lauckhardt to the hospital, arriving [*4] at 5:21 p.m. She believed his signs indicated he was "in shock" with "internal injuries."
At the Hospital, the charge nurse directed that Mr. Lauckhardt remain in the hallway, stating that he "was probably not going to be a trauma." PM Slattery testified
that, upon hearing this, she had a conversation with Nurse Benenson, the nurse assigned to Mr. Lauckhardt:
I gave her the vital signs and a quick overview of the patient and what had happened. And I was like, he can't stay in the hallway, he's clearly a trauma patient, he's cold, pale and moist, and his vitals were low, and the amount of fluids that we gave him on the way to the hospital did not change any of his vital signs. That classifies him as being a trauma. And I said to her, [you've] really got to get somebody over here to look at him be-cause he's not going to do well, he's - he's really sick, you've got to get somebody over here now, if they're not going to con-sider him a trauma now, hopefully if somebody comes over and looks at him, they will.
Before leaving, PM Slattery said she again asked Nurse Benenson to have someone come over to Mr. Lauck-hardt, with Nurse Benenson responding, "I swear I will try to get somebody over here." [*5]
As part of plaintiff's case, portions of Nurse Benen-son's deposition testimony were read to the jury. Nurse Benenson initially acknowledged having contact with emergency squad members upon Mr. Lauckhardt's arri-val at the emergency room:
Q: Now, when he came into the emer-gency room, did you meet with or talk with any of the emergency squad mem-bers?
A: Yes, I did. However, by the next page of her deposition Nurse Benenson stated that she did not remember speaking with any emergency personnel:
Q: Do you recall the members of the emergency squad repeating several times that he needed trauma care right away, or something to that effect?
A: No.
Q: Do you remember your conversa-tions with them?
A: No.
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Q: Do you remember what they did -- do you remember that they did, in fact, speak to you?
A: I don't remember that they spoke to me.
Q: Do you remember any of them expressing upset that he was sitting there and that no trauma team was dealing with him?
A: No.
Q: Are you saying that did not hap-pen or you don't recall it?
A: I don't recall it.
At 5:30 p.m., Nurse Benenson recorded Mr. Lauck-hardt's vital signs, including his temperature, heart rate, respiratory rate, blood pressure, and oxygen saturation level. [*6] She said his blood pressure rate of 106/54 and his oxygen saturation level of 98% were within nor-mal limits; his heart rate of 105 was slightly above the normal range of 60 to 100. Nurse Benenson administered fluid and morphine intravenously. As Mr. Lauckhardt's triage nurse, she assessed the severity of his injuries to determine whether they qualified as non-urgent, urgent, or emergent, and determined they were emergent.
At approximately 5:45 p.m., plaintiff arrived at the Hospital, along with her son, Douglas, Jr. Plaintiff kissed her husband, who felt "cool and damp" and appeared "sweaty."
At 5:50 p.m., Nurse Benenson examined Mr. Lauckhardt and made the following entry in his medical chart: "Diaphoretic, complaining of mid-sternal right-sided chest pain; hypoxemic,3 89 percent room air; connected to oxygen via non-rebreather mask."
3 Hypoxemic is a condition with "[s]ubnormal oxygenation of arterial blood, short of anoxia." Stedman's Medical Dictionary 939 (28th ed. 2006).
At 5:55 p.m., Dr. Jeges, a board-certified ER physi-cian, examined Mr. Lauckhardt, found no abnormal breathing, and concluded he was not a trauma patient. Nevertheless, his differential diagnosis included "in-trathoracic injury." [*7] Dr. Jeges ordered a chest x-ray to rule out suspected chest injuries.
Mr. Lauckhardt's medical chart indicates that the chest x-ray was ordered at 7:25 p.m. STAT,4 approxi-mately two hours after his arrival. At 7:30 p.m., Nurse Benenson's shift ended and Nurse Gabor took over. At
approximately 7:50 p.m., Dr. Jeges read the chest x-ray without the assistance of a radiologist and found "no acute disease." After informing him of the x-ray results, Dr. Jeges asked Mr. Lauckhardt about his level of pain. According to Douglas, Jr., his father responded that he was "in a lot of pain still."
4 While a "STAT" order was supposed to be completed "[a]s soon as possible," Dr. Jeges ex-plained that all emergency room orders for imag-ing studies were labeled "STAT."
At 7:52 p.m., Dr. Jeges ordered a chest CT scan STAT based on Mr. Lauckhardt's continued complaints of pain and abnormal blood test results, including "sub-normal" red blood count, with abnormally low he-moglobin and hematocrit, and an abnormally high white blood count. Regarding Mr. Lauckhardt's chest x-ray, Dr. Jeges explained:
I took a look at his ribs. Again, on a regular chest x-ray, it's very difficult to see rib fractures unless they're kind [*8] of on the lateral sides. His were all on the front, so it's very difficult to read those kinds of fractures.
I didn't see them. I felt that they were there. I knew they were there. I just [could not] identify them on the x-ray. That's why I immediately ordered a CT scan. It's just a better study. If I had been able to see them well on the chest x-ray then I probably could have gotten you know, him tak[en] care of -- maybe even admit-ted to the hospital for some observation for those rib fractures
Without that documented, I had to go for a CT scan, which I was going to do anyway because I felt there may be other things there too. If he's going to have those kind of [rib] fractures and that kind of pain, there must be something else there.
. . . .
I [had] a feeling that it was going to be broken ribs. I had a feeling there may be a bruise to the lung and those are the things that would show up on CT scan.
At 8:40 p.m., Nurse Gabor noted in Mr. Lauck-hardt's medical chart that his lungs were "clear" and his oxygen-saturation level was at "96 percent on
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100-percent non-rebreather mask"; however, this note failed to indicate his blood pressure or heart rate. At her deposition, Nurse Gabor explained that [*9] she had documented Mr. Lauckhardt's vital signs on scrap paper (blood pressure of 120/78 and heart rate of 82), typical of her normal practice, and then recorded them on the chart the next day, after another nurse told her the vital signs were missing. However, the late entry did not indicate that it was entered the next day.
Dr. Jeges's shift ended at 9:00 p.m., at which time Dr. Robert Van Volkenburgh assumed responsibility for Mr. Lauckhardt's medical care.5 Dr. Jeges informed him that Mr. Lauckhardt was stable and waiting to be taken to the radiology department for a CT scan.
5 Before trial, the parties stipulated to the dis-missal of Dr. Van Volkenburgh from the case.
Mr. Lauckhardt never went for his CT scan. Ac-cording to plaintiff, at about 9:30 p.m., her husband stood up, then laid back down, and "grabbed his chest," and his "eyes roll[ed] back." She hollered to Nurse Ga-bor, who was nearby at the nurses' station, "[S]omething's wrong with my husband." Dr. Van Volkenburgh and another doctor administered CPR and other emergency measures. During this time, plaintiff prayed with a chaplain near her husband's bed and heard "very loud" voices of two doctors saying: "[W]here is his CT scan? [H]e did have a CT scan, right? [*10] [W]hy didn't he have a CT scan?" Douglas, Jr. similarly recalled hearing a "heated conversation."
Mr. Lauckhardt was pronounced dead around 10:00 p.m. Defendants Jeges, Benenson, and Gabor all agreed that, had Mr. Lauckhardt been designated as a trauma patient, his CT scan would have been prioritized before non-trauma patients. Dr. Jeges also acknowledged that trauma patients generally receive higher priority regard-ing access to the operating room.
Plaintiff and her son testified that neither a nurse nor a doctor physically examined Mr. Lauckhardt or took his vital signs while they were at the hospital. About a month after Mr. Lauckhardt's death, PM Slattery sent plaintiff a sympathy card, and invited plaintiff to call her because "there were problems once we were at the hos-pital."
Plaintiff's theory in the case was that Mr. Lauckhardt should have been categorized as a trauma patient upon his arrival at the hospital because he was in shock. Plain-tiff's causation expert, Mark Widmann, M.D., a board-certified thoracic surgeon, testified that Mr. Lauckhardt had "a high likelihood of survival" if he had been properly diagnosed with an aortic6 transection and surgically treated in a timely manner. [*11] Dr. Wid-mann opined that any one of four surgical procedures
successfully performed by 9:15 p.m. would have pro-vided Mr. Lauckhardt with an estimated survival rate between eighty and ninety percent.
6 The aorta is "[a] large artery of the elastic type that is the main trunk of the systemic arterial system, arising from the base of the left ventricle and ending at the left side of the body of the fourth lumbar vertebra by dividing to form the right and left common iliac arteries." Stedman's,
supra, at 114.
Defendants disputed plaintiff's assertion that Mr. Lauckhardt received any substandard care or treatment. They also disputed the claim that Mr. Lauckhardt's con-dition was treatable. According to Dr. Ronald J. Simon, M.D., a board-certified general surgeon presented by Dr. Jeges, Mr. Lauckhardt simultaneously had two life-threatening injuries, a transected aorta and a tear in the hilum of his left lung. Dr. Simon opined that even if Mr. Lauckhardt's injuries had been immediately diag-nosed upon his entry to the ER, he would not have sur-vived the two major surgeries required to repair the damage because both injuries, by themselves, had a high mortality rate, and together were "not survivable."
Prior to trial, the [*12] parties all served Pretrial Information Exchanges pursuant to Rule 4:25-7(b). The rule requires attorneys to confer and exchange pretrial information including, "[a]ny in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda." Pretrial Information Exchange, Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2736 (2015). Counsel for de-fendant Benenson identified three in limine motions and counsel for Nurse Gabor identified one. None of the mo-tions indicated that either defendant nurse challenged the qualifications of James Bagnell, M.D., plaintiff's emer-gency medicine and nursing expert, to provide expert testimony as to the nursing care Mr. Lauckhardt re-ceived.7
7 Plaintiff had filed a timely affidavit of merit (AOM) in which Dr. Bagnell opined that Dr. Jeges and the two nurses were professionally negligent. None of the defendants, including the nurses, objected to the AOM. The first indication in the record that either defendant nurse intended to challenge Dr. Bagnell's qualifications occurred on October 21, 2013, as the court was hearing argument on in limine motions, just before open-ing statements. When plaintiff's counsel referred [*13] to Dr. Bagnell's qualifications, counsel for Nurse Benenson spoke up, stating, "And I'll ad-dress that. I do have motions and briefs on this." Despite this statement, there is no indication that
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counsel presented his motions and briefs to the court or requested that the court decide his mo-tions before the start of trial. Instead, it appears that the motions were first presented to the court at the end of the court day on October 31, 2013, after opening statements and six days of trial tes-timony. The court then stated, "Tomorrow morn-ing we'll have to resolve this motion and go from there." Despite this statement, the court unex-plainably did not address the motion before Dr. Bagnell's testimony. The motion was not heard and decided until November 6, 2013, after Dr. Bagnell had completed most of his testimony.
Dr. Bagnell received his undergraduate and medical degrees from Georgetown University. In 1979, he began practicing medicine as an attending emergency physician at Atlantic City Medical Center (ACMC), and became board-certified in emergency medicine in 1986. While practicing at ACMC, he also served as chairman of emergency services and director of medical education.
As chairman of [*14] emergency services, Dr. Bagnell was "responsible for overseeing the care pro-vided to the patients in . . . [the] emergency department." He participated in the development of nursing care standards, as well as "clinical treatment protocols with a physician component and a nursing component." He also instructed the nursing staff regarding nursing care for trauma patients and participated in developing training modules for the nursing staff. As director of medical education, Dr. Bagnell instructed physicians on the di-agnosis and treatment of traumatic chest injuries, and gave lectures to emergency department nurses on the triage process of evaluating patients.
In 1995, Dr. Bagnell "stepped down" from his ad-ministrative duties as chairman and director, and contin-ued to practice as an emergency department physician. Starting in 2000, Dr. Bagnell practiced medicine in the emergency departments of three different hospitals, in-cluding ACMC, Kessler Memorial Hospital, and South-ern Ocean County Hospital. At the time of trial, Dr. Bagnell was a full-time attending emergency physician at Atlantic Care Regional Medical Center (formerly known as ACMC), a level-two trauma facility.8 In addition, Dr. [*15] Bagnell stated that he previously testified twice in court on the standard of nursing care, once in Pennsylva-nia and once in New Jersey.
8 Dr. Bagnell explained the "major difference" between a level one and level two trauma center: in a level-one trauma center, a neurosurgeon and a cardiothoracic surgeon have "to be immediately available in the hospital twenty-four hours a day, seven days a week," while in a level-two trauma
center they have "to be available within 30 minutes."
After Dr. Bagnell testified as to his qualifications, plaintiff's counsel offered him "as an expert in the field of emergency medicine and . . . emergency nursing standard of care." Counsel for Nurses Benenson and Gabor did not object, with both stating they would re-serve their questions regarding qualifications for cross-examination. The judge then stated that Dr. Bagnell "is qualified as an expert in the field of emer-gency medicine," without addressing Dr. Bagnell's quali-fication as an emergency nursing standard of care expert.
Dr. Bagnell testified that Mr. Lauckhardt should have been categorized as a trauma patient upon his arri-val at the hospital because he was in "shock," meaning that his heart rate (105) [*16] divided by his systolic blood pressure (106) was 0.99, which was above the normal range of 0.5 to 0.7. Additional indicators that Mr. Lauckhardt needed immediate attention included his de-creased blood pressure, elevated heart rate, low oxygen saturation level, physical appearance, and body tempera-ture.
Dr. Bagnell explained that Dr. Jeges's improper ini-tial assessment of Mr. Lauckhardt as stable evidenced an "anchoring bias," which impacted his subsequent treat-ment of Mr. Lauckhardt such that he did not appreciate his patient's "grossly abnormal" chest x-ray. In particular, the x-ray revealed that Mr. Lauckhardt likely had fluid in his right lower lung, an abnormally widened mediasti-num "that [wa]s highly suspicious for an injury to one of his vital central structures," and a "slight deviation of the trachea to the right," indicating internal bleeding. Dr. Bagnell explained that, if Dr. Jeges had properly read the x-ray by 6:30 p.m., he could have immediately ordered a CT scan, which could have been completed by 7:00 p.m. and interpreted by 7:15 p.m., so that Mr. Lauckhardt would have been in the operating room by 7:30 p.m.
Dr. Bagnell also testified regarding deviations from the applicable [*17] nursing standard of care by Nurses Benenson and Gabor, including: (1) their failure to fol-low Dr. Jeges's order to monitor vital signs every two hours or more frequently (i.e., every fifteen minutes)9 because they were abnormal;10 (2) the failure of Nurse Benenson to expedite Dr. Jeges's order for a STAT chest x-ray; and (3) the failure of Nurse Gabor to ensure that the CT scan was performed.
9 Dr. Bagnell stated that checking a patient's vital signs every fifteen minutes "is actually the national standard for a[] . . . patient [that is] cat-egorized as an emergent patient." 10 Other than the initial blood pressure ob-tained by Nurse Benenson upon Mr. Lauckhardt's
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arrival at the Hospital, the only other blood pres-sure reading in the chart, indicating an 8:40 p.m. reading, was entered by Nurse Gabor the day af-ter Mr. Lauckhardt died. According to Dr. Bagnell, "the blood pressure that was entered is documented as 120 over 78 with a pulse rate of 82, which is physiologically impossible given Mr. Lauckhardt's condition and the fact that this would have been allegedly recorded within an hour of him exsanguinating . . . hemorrhaging so massively that he died."
After Dr. Bagnell substantially completed [*18] his testimony, Nurses Benenson and Gabor moved to bar his testimony as to the accepted standards of emergency nursing care. The judge granted the motions, under N.J.R.E. 702, based on his determination that Dr. Bagnell was "not qualified to render opinions as to the standards of care applicable to either" defendant nurse. The court did not strike Dr. Bagnell's testimony regarding the nursing care. Instead, he instructed the jury as follows:
Dr. Bagnell was qualified as an expert in the field of emergency medicine. And in that regard, he can render and did ren-der opinions as to deviations from the standard of care with regard to Dr. Jeges but he cannot as a matter of law do that for either of the nurses, Nurse Benenson or Nurse Gabor.
The next day, after plaintiff rested, the judge granted the nurses' and the Hospital's motions for involuntary dismissal, under Rule 4:37-2(b). The judge then in-structed the jury that "[t]he two nurses, Nurse Gabor and Nurse Benenson[,] are no longer parties to this lawsuit. You are not to speculate as to why." The trial continued to a conclusion solely against Dr. Jeges, with the jury returning a seven-to-two verdict in his favor on the issue of liability.
On appeal, plaintiff [*19] contends that Dr. Bagnell was qualified to render opinion testimony against the nurses and that the doctrines of laches and estoppel otherwise should have barred the untimely challenge to his qualifications. She further contends that the judge's ruling, and the resulting dismissal of the nurses and the Hospital from the case, irreparably preju-diced her case against Dr. Jeges. Plaintiff also argues that the trial judge improperly permitted defense counsel to cross-examine her about the workers' compensation ben-efits she received after her husband's death, and erred by precluding her from showing the jury a video depicting her husband's injuries.
II.
To prevail in a medical malpractice action, "ordinar-ily, a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proxi-mately caused the injury." Nicholas v. Mynster, 213 N.J.
463, 478, 64 A.3d 536 (2013) (internal quotation marks and citation omitted). Such expert testimony "is permit-ted to 'assist the trier of fact to understand the evidence or to determine a fact in issue.'" Ibid. (quoting N.J.R.E.
702). Further, an expert must be qualified to testify, meaning he or she must have the requisite [*20] "knowledge, skill, experience, training, or education . . . ." N.J.R.E. 702.
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52, 110 A.3d 52 (2015) (citation omitted). It is "within the sound discretion of the trial judge" to determine the qualifications or compe-tency of an expert witness. State v. Pemberthy, 224 N.J.
Super. 280, 301, 540 A.2d 227 (App. Div.), certif. denied, 111 N.J. 633, 546 A.2d 547 (1988). "[W]e apply [a] def-erential approach to a trial court's decision to admit ex-pert testimony, reviewing it against an abuse of discre-tion standard." Townsend, supra, 221 N.J. at 53 (second alteration in original) (citation and internal quotation marks omitted). The trial judge's determination will not be disturbed "'unless a clear abuse of discretion ap-pears.'" State v. Chatman, 156 N.J. Super. 35, 40, 383
A.2d 440 (App. Div.) (quoting Henningsen v. Bloomfield
Motors, Inc., 32 N.J. 358, 411, 161 A.2d 69 (1960)), cer-
tif. denied, 79 N.J. 467, 401 A.2d 224 (1978). However, we accord no such discretion to a ruling that is "incon-sistent with applicable law." Pressler & Verniero, Cur-
rent N.J. Court Rules, comment 4.7 on R. 2:10-2 (2015). We are required to disregard an error unless, after con-sideration, we find "it is of such a nature as to have been clearly capable of producing an unjust result[.]" R.
2:10-2.
Generally, a court may admit expert testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine [*21] a fact in issue. . . ." N.J.R.E. 702. In addition, Rule 702 requires that "the witness . . . have sufficient expertise to offer the intended testimony." Landrigan v. Celotex Corp., 127 N.J. 404, 413, 605 A.2d
1079 (1992) (citation omitted).
"The test of an expert witness's competency [to tes-tify] in a malpractice action is whether he or she has suf-ficient knowledge of professional standards [applicable to the situation under investigation] to justify [his or her] expression of an opinion." Carey v. Lovett, 132 N.J. 44,
64-65, 622 A.2d 1279 (1993) (citing Sanzari v. Rosen-
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feld, 34 N.J. 128, 136, 167 A.2d 625 (1961)). "The weight of any such testimony, of course, is for the jury." Id. at 65.
Usually, a witness presented as an expert at trial should be licensed as a member of the defendant's pro-fession. Sanzari, supra, 34 N.J. at 136. However, li-censed or even unlicensed individuals involved in anoth-er profession can testify as an expert depending on "the claim involved, the specific allegations made, and the opinions that the expert proposes to offer at trial." Gar-
den Howe Urban Renewal Assocs., L.L.C. v. HACBM
Architects Eng'rs Planners, L.L.C., 439 N.J. Super. 446,
456, 110 A.3d 82 (App. Div. 2015). This can occur where there is an overlap between practices or disciplines. Any practitioner who is familiar with the situation in dispute and possesses "the requisite training and knowledge [can] express an opinion as an expert." Rosenberg v. Ca-
hill, 99 N.J. 318, 331-32, 492 A.2d 371 (1985). We have therefore recognized, in certain cases, "a doctor in one field would be qualified to render an opinion as to the performance [*22] of a doctor in another with respect to their common areas of practice." Wacht v. Farooqui, 312
N.J. Super. 184, 187-88, 711 A.2d 405 (App. Div. 1998); see also Cahill, supra, 99 N.J. at 331-34; Sanzari, supra,
34 N.J. at 136.
For example, the Court held where the controversy involved the review of x-rays and the diagnosis of phys-ical conditions, a medical doctor was competent as an expert in a malpractice claim against a chiropractor be-cause it recognized that a medical professional can pro-vide an expert opinion where the professional has suffi-cient knowledge of the professional standard relevant to the situation under scrutiny. Cahill, supra, 99 N.J. at
334; see also Khan v. Singh, 200 N.J. 82, 101, 975 A.2d
389 (2009); Sanzari, supra, 34 N.J. at 136-37 (noting overlap between fields of medicine and dentistry). In Garden Howe, a professional negligence action against an architect, we reversed a trial court's determination that an engineer was not qualified to give expert opinions in areas where the two professions overlapped. Garden
Howe, supra, 439 N.J. Super. at 457.
Moreover, an expert witness's conclusions can be based on his or her qualifications and personal experi-ence, without citation to academic literature. State v.
Townsend, 186 N.J. 473, 495, 897 A.2d 316 (2006) (al-lowing opinion testimony based on the expert's "educa-tion, training, and most importantly, her experience"); Rosenberg v. Tavorath, 352 N.J. Super. 385, 403, 800
A.2d 216 (App. Div. 2002) ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned [*23] from personal experience."). "The requirements for expert qualifications are in the disjunc-tive. The requisite knowledge can be based on either
knowledge, training or experience." Bellardini v. Kri-
korian, 222 N.J. Super. 457, 463, 537 A.2d 700 (App.
Div. 1988). A.
In ruling on the motion to bar Dr. Bagnell's testi-mony regarding nursing standards of care, the trial judge first determined that the New Jersey Medical Care Ac-cess and Responsibility and Patients First Act (Patients First Act), N.J.S.A. 2A:53A-37 to -42, did not apply, determining that the statute only applies to doctors. He then set forth his reasons for concluding that Dr. Bagnell was not qualified to render expert opinion testimony against the nurses under N.J.R.E. 702. He first noted, "Nursing and medicine[,] although obviously related here [,] are distinct fields, distinct professions and each has a separate and distinct job." Based on this premise, the judge held that any testimony alleging deviations from the standard of care of an emergency room nurse would require "the expertise specifically . . . of an emer-gency room nurse to know what an emergency room nurse does or [does not] do . . . ." While acknowledging that "Dr. Bagnell is a pretty accomplished emergency room physician," the judge emphasized that he [*24] is "not an emergency room nurse and he really [cannot] view this through the eyes of an emergency room nurse . . . ." Despite further acknowledging that "amongst other doctors and perhaps amongst other nurses, Dr. Bagnell's opinions may be very valid and informative," and de-scribing Dr. Bagnell as "a very learned man" who "knows his stuff," the judge concluded that "he knows nothing about nursing."
Our review of the trial record does not support this conclusion. To the contrary, the record contains suffi-cient evidence that Dr. Bagnell has adequate knowledge of the standard of care applicable to nurses in an emer-gency room setting to allow him to provide expert testi-mony in this case. Dr. Bagnell established extensive qualifications that included working closely with ER nurses for almost thirty-five years. He has held adminis-trative positions in which he promulgated standards for nurses to follow in hospitals where he has worked. His ability to render competent care to his patients requires him to know and understand the duties and responsibili-ties imposed upon emergency room nurses by the stand-ard of care. We are satisfied that he possessed the spe-cialized knowledge necessary to offer [*25] competent testimony about the standard of care applicable to de-fendants Benenson and Gabor.
Furthermore, "the weight to be given to the evidence of experts is within the competence of the fact-finder." LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340
N.J. Super. 155, 165, 773 A.2d 1209 (App. Div. 2001). Therefore, the fact-finder is free to "accept some of the
177
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expert's testimony and reject the rest." State v. M.J.K.,
369 N.J. Super. 532, 549, 849 A.2d 1105 (App. Div.) (citation omitted), certif. granted, 181 N.J. 549, 859 A.2d
693 (2004), and appeal dismissed, 187 N.J. 74, 899 A.2d
298 (2005).
While we agree with the judge that N.J.S.A.
2A:53A-41(a) does not apply to Nurses Benenson or Gabor, because as registered ER nurses neither qualifies as specialists or subspecialists that are recognized by the American Board of Medical Specialties or the American Osteopathic Association, N.J.S.A. 2A:53A-41(a), we conclude that the decision to bar the nursing testimony of Dr. Bagnell under N.J.R.E. 702 constituted a clear mis-taken exercise of discretion, in light of "the claim in-volved, the specific allegations made, and the opinions that the expert proposes to offer at trial." Garden Howe,
supra, 439 N.J. Super. at 456.
This case involved the standard of care required in treating a chest trauma patient undergoing evaluation in an ER, a situation that Dr. Bagnell has addressed on a regular basis as an ER physician. Dr. Bagnell's criticisms of the nurses were of a limited basis, namely inadequate [*26] monitoring and failure to expedite the patient's x-ray and CT scan, in light of his symptoms. In our view Dr. Bagnell's area of expertise encompassed standards of nursing practice in the ER setting, in comparable situa-tions, on a regular basis.
We further note that Dr. Bagnell participated in the development of nursing care standards, as well as "clini-cal treatment protocols with a physician component and a nursing component," and instructed nursing staff re-garding nursing care for the trauma patients. Most im-portantly, for over three decades his daily contact and interaction with ER nurses in the care of his own patients has provided him with ongoing personal experience to observe and know the standard practices applicable to ER nurses. B.
Furthermore, we conclude that the doctrines of laches and estoppel barred the Hospital and defendant nurses from making an untimely challenge to Dr. Bagnell's qualifications. "Laches is an equitable doctrine that applies when a party sleeps on [his or] her rights to the harm or detriment of others." N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 445, 48 A.3d 1075
(2012) (citing Fox v. Millman, 210 N.J. 401, 417, 45
A.3d 332 (2012)). The doctrine may be "'invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in [*27] exercising that right to the prejudice of the other party.'" Fox, supra, 210 N.J. at 418 (quoting Knorr v.
Smeal, 178 N.J. 169, 180-81, 836 A.2d 794 (2003)).
"Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith be-lieving that the right had been abandoned." Knorr, supra,
178 N.J. at 181 (citation omitted).
Equitable estoppel is a doctrine "'founded in the fundamental duty of fair dealing imposed by law.'" Knorr, supra, 178 N.J. at 178 (quoting Casamasino v.
City of Jersey City, 158 N.J. 333, 354, 730 A.2d 287, cross-appeal dismissed, 162 N.J. 123, 741 A.2d 93
(1999)). "The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Ibid. (citing Mattia v. N. Ins. Co. of N.Y., 35 N.J. Super. 503,
510, 114 A.2d 582 (App. Div. 1955)). Therefore, plain-tiffs claiming that a defendant should be estopped from asserting a right must show that "defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment." Ibid. (citing Miller v.
Miller, 97 N.J. 154, 163, 478 A.2d 351 (1984)).
Rule 4:25-7(b) expressly requires the exchange of information regarding "[a]ny in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda." Pressler & Verniero, supra, Appendix XXIII to R. 4:25-7(b) at 2736 (2015). Rule
4:25-7(b), incorporating Appendix XXIII, is intended to "eliminate the element of surprise [*28] at trial" that is created by in limine and trial motions served on an ad-versary and handed up to the court in the middle of trial. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370,
771 A.2d 1153 (2001). The rule further provides that "[f]ailure to exchange and submit all the information required by this rule may result in sanctions as deter-mined by the trial judge." R. 4:25-7(b).
We discern no valid reason or justification for the failure of the Hospital and defendant nurses to comply with the clear mandate of Rule 4:25-7(b), which unfairly deprived the trial court and plaintiff's counsel of the op-portunity to timely address this critical issue. Any chal-lenge to Dr. Bagnell's qualifications should have been included in defendants' pretrial information exchange submissions and the issue addressed prior to opening statements. Because this issue was not timely raised, plaintiff proceeded to open to the jury and present trial testimony and evidence focusing, in significant part, on the alleged substandard care of defendant nurses, some-thing plaintiff would not have done if defendant nurses had successfully raised this issue in a timely manner. Plaintiff obviously changed her position to her detriment. We therefore conclude that the doctrines of laches and equitable estoppel barred the [*29] nursing defendants and the Hospital from asserting their late challenge to Dr. Bagnell's qualifications.
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C.
Next, we must consider whether the trial court's de-cision to exclude Dr. Bagnell's expert testimony regard-ing the care provided by Nurses Benenson and Gabor was "clearly capable of producing an unjust result[.]" R.
2:10-2.
The proofs in this case do not overwhelmingly favor any party; hence, the improper exclusion of a significant portion of Dr. Bagnell's trial testimony could have been the deciding factor in favor of Dr. Jeges. The record contains substantial evidence from the emergency per-sonnel that Nurse Benenson received potentially critical information regarding Mr. Lauckhardt's injuries and condition. The record also contains evidence that Mr. Lauckhardt's condition was not properly monitored. Be-cause plaintiff's claims against Nurses Benenson and Gabor were dismissed at the end of plaintiff's case, the jury never heard testimony from either nurse, only lim-ited portions of their deposition testimony. We conclude there was a high risk that the jury was improperly influ-enced by the trial court's exclusion of Dr. Bagnell's tes-timony describing the substandard care provided by Nurses [*30] Benenson and Gabor, and the consequent dismissal of the nurses and the Hospital from the case.
Under the circumstances of this case, we are con-vinced that this error was "clearly capable of producing an unjust result[.]" R. 2:10-2. The exclusion of a signifi-cant portion of Dr. Bagnell's testimony, the day after the jury received it, clearly had the capacity to adversely impact the jury's assessment of Dr. Bagnell's opinions as to Dr. Jeges, and thus could readily have been out-come-determinative.11 As a result, we conclude a new trial is required.
11 We note that the argument that Mr. Lauck-hardt may not have received the care he needed, even if he had been classified as a trauma patient, due to the fact there were two other incoming trauma patients, was severely undermined by Dr. Jeges' own testimony:
Q: Can Robert Wood Johnson . . . treat three different traumas at the same time?
A: They can treat as many traumas as they have to. Obvious-ly, it's -- you know it gets a little more difficult when there is more than one trauma, more than two traumas, but we also have mass casualty protocols that come [into]
play as well if there is an incident . . . we've used them before . . . .
D.
In light of our decision [*31] to reverse and remand for a new trial, we briefly address plaintiff's two remain-ing claims of trial error.
On direct examination, plaintiff's counsel asked plaintiff when Mr. Lauckhardt's income stopped, and she replied, "Right after I got that last week's pay." In fact, plaintiff continued to receive seventy percent of Mr. Lauckhardt's income after his death in the form of work-ers' compensation benefits. The court permitted limited cross-examination of plaintiff regarding her receipt of these benefits because it contradicted her testimony on direct examination and thus was relevant to her credibil-ity. N.J.R.E. 607.
While we discern no mistaken exercise of discretion in the court's initial ruling, in light of the false impression created by plaintiff's testimony, we conclude that the court's instructions to the jury that followed did not fully address the concerns we set forth in Joy v. Barget, 215
N.J. Super. 268, 272, 521 A.2d 906 (App. Div. 1987). In particular, the court failed to instruct the jury "that there are mechanisms in workers' compensation law and in tort law which will be utilized by the court to prevent any double recovery." Ibid.
We expect that, upon retrial, plaintiff's counsel will avoid the line of questioning that allowed for the inter-jection [*32] of workers' compensation into the case. If workers' compensation benefits should again enter the case, the trial court shall "confront the problem directly and eliminate the inherent prejudice" by fully instructing the jury, consistent with Joy. Ibid.
Lastly, we address plaintiff's argument that the court erred by barring her use of a video depicting her hus-band's injuries at trial. Before trial, plaintiff's counsel filed a motion to admit a video depicting Mr. Lauck-hardt's injuries to be used during the testimony of Dr. Widmann. While the judge ruled that the video was sub-stantively admissible, he denied the motion because plaintiff had not disclosed the video as an amendment to her answers to interrogatories, contrary to Rule 4:17-7. The judge noted that the case had four discovery end dates, and that the trial had been adjourned eight times. The record indicates no evidence that plaintiff timely amended her answers to interrogatories or served a certi-fication of due diligence required by Rule 4:17-7. We are satisfied that the trial court did not abuse its discretion in denying plaintiff's motion. See Smith v. Schalk, 360 N.J.
Super. 337, 339, 345-46, 823 A.2d 65 (App. Div. 2003)
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(reversing admission of "certain medical information emerging on the eve of trial," where the [*33] plaintiff failed to file an application to amend interrogatory re-sponses supported by affidavit of due diligence under Rule 4:17-7).
Because we conclude the trial court's decision to ex-clude the expert testimony of Dr. Bagnell regarding the care provided by Nurses Benenson and Gabor constituted
reversible error, the order dismissing plaintiff's complaint against the Hospital and defendant nurses is reversed and the verdict of no cause of action as to Dr. Jeges is vacat-ed. We remand the matter for a new trial consistent with this opinion.
Reversed and remanded. We do not retain jurisdic-tion.
180
Review of 2016 Cases Not Involving AOM
William L. Brennan, Esq. 1. Voluntary dismissal w/o prejudice
A.T. ex rel. T.T. v. Cohen, 445 N.J. Super. 300, 137 A.3d 1218 (App. Div.2016)http://njlaw.rutgers.edu/collections/courts/appellate/a0589-14.opn.html
2. Mandatory Arbitration Clauses
Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 445 N.J.Super. 173, 136 A.3d 955 (App. Div. 2016)
Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 139 A.3d 148 (App.Div. 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a4453-14.opn.html
3. Choice of Law
Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 135 A.3d 954 (2016)http://njlaw.rutgers.edu/collections/courts/supreme/a-25-14.opn.html
4. Patient Safety Act/Discovery of Documents
Conn v. Rebustillo, 445 N.J. Super. 349, 138 A.3d 545 (App. Div. 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a1421-15.opn.html
181
5. Fictitious Pleadings Rule/Proximate Cause
Worthy v. Kennedy Health Sys., 446 N.J. Super. 71, 140 A.3d 584 (App.Div. 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a2698-14.opn.html
6. Net Opinion
Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 129 A.3d350 (App. Div. 2015)
7. Opinion of Non Testifying Doctor
Aponte v. Patel, No. A-4486-14T1, 2016 WL 3582143 (N.J. Super. Ct. App.Div. July 5, 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a4486-14.opn.html
8. Settling Defendants/Jury Charge and Interrogatories
Gatesy v. Perotte, No. A-0360-13T3, 2016 WL 1368026 (N.J. Super. Ct.App. Div. Apr. 7, 2016); Cert. denied- Gatesy v. Perotte, No. 077575, 2016WL 5335295 (N.J. Sept. 12, 2016).http://njlaw.rutgers.edu/collections/courts/appellate/a0360-13.opn.html
9. Expert Testimony/ Qualification Of Experts
Rothman v. Cole, No. A-1838-14T1, 2016 WL 3918834 (N.J. Super. Ct.App. Div. July 21, 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a1838-14.opn.html
182
10. Concurrent Causes of Harm
Duber v. Ctr. for Advanced Urology, No. A-5194-13T3, 2015 WL 9694402(N.J. Super. Ct. App. Div. Jan. 12, 2016)
11. Adverse Inference Charge/Request For Admissions
Torres v. Pabon, 225 N.J. 167, 137 A.3d 502 (2016)http://njlaw.rutgers.edu/collections/courts/supreme/a-116-13.opn.html
12. Deposition Testimony In Lieu Of Testifying
Smith v. Bickerton, No. A-4689-14T4, 2016 WL 4717995 (N.J. Super. Ct.App. Div. Sept. 9, 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a4689-14.opn.html
13. Pro Tanto Credit/Out Of State Settlement
Kranz v. Schuss, No. A-4918-13T1, 2016 WL 4537409 (N.J. Super. Ct.App. Div. Aug. 31, 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a4918-13.opn.html
14. Mary Carter Agreements
Rein v. Fog, No. A-1140-13T1, 2016 WL 4366855 (N.J. Super. Ct. App.Div. Aug. 16, 2016)http://njlaw.rutgers.edu/collections/courts/appellate/a1140-13.opn.html
183
----- Reprinted with permission of LexisNexis.
BERNETICH, HATZELL & PASCU, LLC, on behalf of itself and all others similarly situated, Plaintiff-Respondent,
v. MEDICAL RECORDS ONLINE, INC. (d/b/a "MRO"),
Defendant-Appellant.
DOCKET NO. A-0657-15T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
445 N.J. Super. 173; 136 A.3d 955; 2016 N.J. Super. LEXIS 56
April 6, 2016, Argued April 22, 2016, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication April 22, 2016. Certification denied by Bernetich v. Medical Records
Online, 2016 N.J. LEXIS 939 (N.J., Sept. 7, 2016) PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1271-15. COUNSEL: Lisa J. Rodriguez argued the cause for ap-pellant (Schnader Harrison Segal & Lewis LLP, attor-neys; Ms. Rodriguez, of counsel; David Smith, Carl A.
Solano and Bradly A. Nankerville, on the briefs). Joseph A. Osefchen argued the cause for respondent (DeNittis Osefchen, P.C., attorneys; Stephen P. DeNittis and Mr. Osefchen, on the brief). JUDGES: Before Judges OSTRER, HAAS and MANAHAN. The opinion of the court was delivered by OSTRER, J.A.D. OPINION BY: OSTRER OPINION
[*176] [**956] The opinion of the court was de-livered by
OSTRER, J.A.D.
In this appeal, we conclude that a hospital's medical records processor may not enforce a mandatory arbitra-
tion clause that it included in its invoice to a patient's attorney in response to a request for records. The hospi-tal, and the processor acting as its agent, had a pre-existing legal [**957] duty under State law to provide the patient's records. Consequently, the records re-quester's alleged bargain to arbitrate any dispute related to the invoice was unsupported by consideration, and thus unenforceable. We therefore affirm the trial court's order denying the records [***2] processor's motion to compel arbitration of a dispute over its invoice. I.
Defendant Medical Records Online, Inc. (MRO) is a third-party processor of requests for medical records submitted to hospitals [*177] and physicians, including Kennedy Memorial Hospitals (Kennedy Hospitals) in Washington Township. Plaintiff Bernetich, Hatzell & Pascu, LLC (BH&P) is a personal injury law firm. A prospective client, J.H., authorized BH&P to obtain his medical records from Kennedy Hospitals on his behalf. BH&P sent the hospital a medical records request on February 23, 2015.
In response to the request, MRO sent BH&P an in-voice for $204.19. MRO stated prepayment was required before it would release the records; payment would con-stitute approval of the charges and the invoice; and if BH&P disputed the invoice, it had to arbitrate first. The invoice provided:
By paying this invoice, you are repre-senting that you have reviewed and ap-proved the charges and have agreed to pay
185
Page 2 445 N.J. Super. 173, *; 136 A.3d 955, **;
2016 N.J. Super. LEXIS 56, ***
them. Any dispute relating to this invoice must be presented before paying this in-voice. Any dispute not so presented is waived. All disputes must be resolved by arbitration under the Federal Arbitration
Act through one or more neutral arbitra-tors [***3] before the American Arbitra-tion Association. Class arbitrations are not permitted. Disputes must be brought only in the claimant's individual capacity and not as a representative of a member or class. An arbitrator may not consolidate more than one person's claims nor preside over any form of class proceeding.1
The bottom of the invoice stated, "Please contact MRO . . . for any questions regarding this invoice."
1 We will hereinafter refer to this paragraph as the arbitration provision.
MRO retrieved 271 pages, for which it charged $204.19. This charge consisted of a $10 search and re-trieval fee, $1.19 for postage, and $193 in per-page fees. The fees were calculated at the rate of $1.00 a page for pages one through 100 for each hospital visit, and twen-ty-five cents a page for additional pages for each visit. The invoice stated that records over seventy-five pages "may be sent on CD-ROM." BH&P paid the invoice and received a CD-ROM containing the 271 pages of medi-cal records.
Thereafter, BH&P filed a complaint on behalf of it-self and a putative class, alleging that MRO overcharged BH&P and other records requesters. BH&P contended that patients and their authorized agents are legally enti-tled to obtain [***4] their medical records, and that health care providers may only charge a cost-based [*178] fee. BH&P alleged that MRO's per page fee was unrelated to, and far exceeded, its actual costs in retriev-ing electronically stored medical records and transferring them onto digital media. BH&P asserted that MRO's billing practices violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA), among other claims. MRO responded by filing a motion to compel arbitration, or, alternatively, to dismiss for failure to state a claim. R. 4:6-2(e).
[**958] The trial court denied MRO's motion to compel arbitration.2 Citing Atalese v. U.S. Legal Services
Group, 219 N.J. 430, 99 A.3d 306 (2014), cert. denied, U.S. , 135 S. Ct. 2804, 192 L. Ed. 2d 847 (2015), the court held that the invoice was a consumer contract that did not put BH&P on notice, with sufficient clarity and prominence, that by paying the invoice it was waiving its right to litigate. Further, the invitation at the bottom of
the invoice to call MRO with questions was not a clear mechanism for opting out of arbitration. The judge con-cluded that the invoice held a consumer's records "hos-tage" until a consumer paid the invoice and, thereby, purportedly agreed to the terms of the arbitration provi-sion. The court denied MRO's motion to compel arbitra-tion. This appeal as of right followed. See R. 2:2-3(a)(3).
2 The court decided [***5] the arbitration mo-tion first, and thereafter stayed action on the dis-missal motion pending this appeal.
On appeal, MRO argues that the arbitration provi-sion is enforceable. MRO contends that BH&P accepted the arbitration provision, and waived any objection to its terms, by paying the invoice without first raising its dis-pute. MRO also contends that the invoice is neither a consumer contract nor subject to the stringent standards established in Atalese; and it clearly informed BH&P that disputes over the invoice must be arbitrated. MRO asks us to enforce federal and state laws that favor arbi-tration, and to reverse the trial court's order.
BH&P responds that the arbitration provision is a consumer contract; Atalese applies; and the arbitration provision did not [*179] provide clear and unambigu-ous notice to consumers that, by paying the invoice, they were waiving their right to sue. BH&P argues its pay-ment did not constitute assent to the arbitration provi-sion. BH&P also argues that the arbitration provision is unenforceable because MRO imposed it unilaterally. As MRO had a legal duty to provide the requested records, BH&P argues it was unlawful and unconscionable to condition performance of [***6] that duty upon consent to the arbitration provision. II. A.
We exercise plenary review regarding whether an arbitration agreement is valid and enforceable. Hirsch v.
Amper Fin. Servs., LLC, 215 N.J. 174, 186, 71 A.3d 849
(2013).
Though both the Federal Arbitration Act, 9 U.S.C.A.
§§ 1 to 16, and New Jersey's version of the Uniform Ar-bitration Act, N.J.S.A. 2A:23B-1 to -32, reflect a prefer-ence for arbitration, arbitration remains "a matter of con-tract." AT&T Mobility LLC v. Concepcion, 363 U.S. 333,
339, 131 S. Ct. 1740, 1745, 179 L. Ed. 2d 742, 751
(2011) (citation omitted); Fawzy v. Fawzy, 199 N.J. 456,
469, 973 A.2d 347 (2009) (stating arbitration is "a crea-ture of contract.") (citation omitted). "Arbitration is a matter of contract and a party cannot be required to sub-mit to arbitration any dispute which he has not agreed so to submit." AT&T Techs., Inc. v. Commc'n Workers of
186
Page 3 445 N.J. Super. 173, *; 136 A.3d 955, **;
2016 N.J. Super. LEXIS 56, ***
Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed.
2d 648, 655 (1986); Atalese, supra, 219 N.J. at 430 ("Parties are not required to arbitrate when they have not agreed to do so.") (quoting Volt Info. Scis. v. Bd. of Trs.
of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.
Ct. 1248, 1255, 103 L. Ed. 2d 488, 499 (1989)).
[**959] We apply state contract law to determine whether a valid agreement to arbitration exists. Id. at
441. "When deciding whether the parties agreed to arbi-trate a certain matter . . . courts generally . . . should ap-ply ordinary state-law principles [*180] that govern the formation of contracts." First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924, 131 L.
Ed. 2d 985, 993 (1995). However, we may not "subject an arbitration agreement to more burdensome require-ments than those governing the formation of other con-tracts." Leodori v. CIGNA Corp., 175 N.J. 293, 302, 814
A.2d 1098, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157
L. Ed. 2d 250 (2003).
We view the principal issue in this case to be wheth-er MRO's fulfillment of a pre-existing [***7] legal duty -- to provide medical records for a cost-based fee -- fur-nishes consideration to create an enforceable contract to arbitrate. We will first outline the nature of the duty, and then review the applicable contract principles.
Under state and federal law, a patient has a qualified right to inspect or obtain copies of his or her medical records. Federal regulations adopted pursuant to 42
U.S.C.A. §§ 1320d to 1320d-9, provisions of the Health
Insurance Portability and Accountability Act of 1996
(HIPAA), grant "an individual . . . a right of access to inspect and obtain a copy of protected health information about the individual in a designated record," 45 C.F.R. §
164.524(a), upon payment of a "reasonable, cost-based fee. . . ." 45 C.F.R. § 164.524(c)(4). However, certain kinds of records are excluded, and various circumstances may justify denial of access to otherwise disclosable rec-ords. 45 C.F.R. § 164.524(a)(2), (a)(3). The federal right to access medical records for a cost-based fee extends to an individual's personal legal representative, which has been construed to include a guardian, but not such other agents as attorneys. Webb v. Smart Document Solutions,
LLC, 499 F.3d 1078, 1085-86 (9th Cir. 2007).
The New Jersey patient's right to access records is not so limited, and extends to the patient's attorneys. The Hospital Patients Bill of Rights includes the right "to access" [***8] "all records pertaining to the patient's treatment . . . including receipt of a copy thereof at rea-sonable cost, upon request, unless the patient's physician states in writing that access by the patient is not medical-ly advisable . . . ." N.J.S.A. 26:2H-12.8(g). This right is [*181] implemented by State regulation, N.J.A.C.
8:43G-4.1(a)(25), which enumerates a hospital patient's
rights, and establishes the right "[t]o obtain a copy of the patient's medical record, at a reasonable fee, within 30 days of a written request to the hospital" unless access is "medically contraindicated . . . ." The thirty-day deadline is also found in N.J.A.C. 8:43G-15.3(d).3
3 The Board of Medical Examiners has promul-gated separate regulations governing the right to, and charges for, patient records held by its licen-sees. See N.J.A.C. 13:35-6.5(c)(4); Boldt v. Cor-
respondence Mgmt., 320 N.J. Super. 74, 78-81,
726 A.2d 975 (App. Div. 1999) (distinguishing between N.J.A.C. 8:43G-15.3 and N.J.A.C.
13:35-6.5).
The "reasonable fee" must be a "fee based on actual costs," yet it may not exceed established ceilings, which vary depending on who requests the documents. N.J.A.C.
8:43G-15.3(d), (e). One standard applies to the "patient or the patient's legally authorized representative," N.J.A.C. 8:43G-15.3(d), which includes, among others, an attorney, as well as a spouse, guardian, or insurer. N.J.A.C. 8:43G-15.3(d)(5). Another standard applies to requests made by anyone else whom the patient has au-thorized, as [***9] well [**960] as health care provid-ers themselves and their attorneys. N.J.A.C. 8:43G-
15.3(e).
The regulation states:
(d) If a patient or the patient's legally authorized representative requests, in writing, a copy of his or her medical rec-ord, a legible, written copy of the record shall be furnished at a fee based on actual costs. One copy of the medical record from an individual admission shall be provided to the patient or the patient's le-gally authorized representative within 30 days of the request, in accordance with the following:
1. The fee for copying records shall not exceed $1.00 per page or $100.00 per record for the first 100 pages. For records which contain more than 100 pages, a copying fee of no more than $0.25 per page may be charged for pages in excess of the first 100 pages, up to a maximum of $200.00 for the entire record;
2. In addition to per page costs, the following charges are permitted:
i. A search fee of no more than $10.00 per patient per request. (Although the patient may have had more than one admission, and thus more than one record
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is provided, only one search fee shall be permitted for that request. The search fee is permitted even though no medical rec-ord is found as a result of the search.); [***10] and
[*182] ii. A postage charge of actual costs for mailing. No charges shall be as-sessed other than those permitted in (d)1 and 2 above;
. . . .
(e) The fee for copying medical rec-ords shall be based on actual costs, which in no case shall exceed $1.00 per page and $10.00 per search, in the case of the fol-lowing:
1. Where the patient has authorized release of his or her medical record to a person or entity other than those identified in (d) above, including but not limited to physicians or other practitioners who pro-vided care to the patient, or attorneys rep-resenting such providers; or
2. The patient subsequently requests additional copies of a medical record which has been furnished in accordance with (d) above.
[N.J.A.C. 8:43G-15.3(d)-(e).]
As the fee must be based on "actual cost," the per-page amounts serve only to establish the maximum a patient may be charged. See Smith v. Hudson Register,
411 N.J. Super. 538, 571, 988 A.2d 114 (App. Div.
2010);4 see also Boldt, supra, 320 N.J. Super. at 82.5
4 Smith was superseded on other grounds by N.J.S.A. 47:1A-5(b), as recognized in Smith v.
Hudson County Register, 422 N.J. Super. 387,
391, 29 A.3d 313 (App. Div. 2011). 5 In a petition for rulemaking, the Association of Health Information Outsourcing Services ar-gued that its members should not be required to justify the charge of each medical record request based on its cost because it would be impractical to do so. It proposed that the Department [***11] of Health and Senior Services amend its regula-tion to permit the association's members to charge the amounts specified in the regulation. 29 N.J.R.
5335(a) (Dec. 15, 1997). The Department re-ferred the matter for study. 30 N.J.R. 3338(a) (Sept. 8, 1998). The proposal was never adopted.
The regulation provides that "[a]ccess to the medical record shall be limited only to the extent necessary to protect the patient." N.J.A.C. 8:43G-15.3(f). Hospitals shall review their medical record department's policies and procedures, including its fees, at least every three years. N.J.A.C. 8:43G-15.2(a).
Nothing in N.J.A.C. 8:43G-15.3 expressly permits a hospital to exact any consideration other than a cost-based fee in return [**961] for supplying records. Do-ing so would burden the patient's right, guaranteed by statute, to his or her records. Indeed, in some [*183] respects, a hospital may be constrained to accept less than a cost-based fee, as the regulation sets a $200 max-imum for an entire record requested by a patient or the patient's legally authorized representative. N.J.A.C.
8:43G-15.3(d). Hospitals must also "establish a policy assuring access to copies of medical records for patients who do not have the ability to pay. . . ." N.J.A.C. 8:43G-
15.3(d)(3). On the other hand, a hospital's fee policy shall include incentives to encourage patients to accept summaries [***12] or abstracts of their medical records. N.J.A.C. 8:43G-15.3(d)(4).
Returning to the question of whether the arbitration provision is enforceable, we apply the fundamental prin-ciple that "[n]o contract is enforceable . . . without the flow of consideration -- both sides must 'get something' out of the exchange." Continental Bank of Pa. v. Barclay
Riding Acad., Inc., 93 N.J. 153, 170, 459 A.2d 1163 (ci-tation omitted), cert. denied, 464 U.S. 994, 104 S. Ct.
488, 78 L. Ed. 2d 684 (1983). "Basic contract principles render a promise enforceable against the promisor if the promisee gave some consideration for the promise." Martindale v. Sandvik, 173 N.J. 76, 87, 800 A.2d 872
(2002). Consideration "is a bargained-for exchange of promises or performance that may consist of an act, a forebearance, or the creation, modification, or destruc-tion of a legal relation." Ibid. (citation omitted); see also
Sipko v. Koger, Inc., 214 N.J. 364, 381, 70 A.3d 512
(2013) (invalidating stock transfers based on lack of re-quired consideration). Therefore, consideration is essen-tial to form an agreement to arbitrate. Martindale, supra,
173 N.J. at 88-89 (finding consideration for arbitration agreement).
However, consideration generally may not be fur-nished by fulfilling a pre-existing legal duty. "Perfor-mance of a legal duty owed to a promisee which is nei-ther doubtful nor the subject of honest dispute is not con-sideration. . . ." Restatement (Second) of Contracts, § 73 (1981);6 Segal v. Lynch, 211 N.J. 230, 253, 48 [*184] A.3d 328 (2012) (stating that "consideration cannot be a promise to perform a pre-existing legal duty") (citing [***13] Williston on Contracts § 7:37 (4th ed. 2008)).
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6 We recognize that the "pre-existing duty rule" is not without exceptions. See Restatement (Sec-
ond) of Contracts, § 89 (1981). However, none apply here.
Consistent with this principle, a party may not im-pose an arbitration clause after the parties have already exchanged consideration and created an enforceable con-tract. We held that a party was not obliged to arbitrate a warranty claim where the arbitration clause was sent to the party after they entered the original contract. Paul v.
Timco, Inc., 356 N.J. Super. 180, 185-86, 811 A.2d 948
(App. Div. 2002). "One party to a contract may not uni-laterally impose an obligation to arbitrate upon another party to the contract." Id. at 185.
In this case, MRO's pre-existing duty arises from statute and regulation, as opposed to contract. As the records processor for Kennedy Hospitals, MRO was obliged to provide medical records upon the request of "a patient or the patient's legally authorized representative" or anyone else whom the patient has authorized.7 [**962] N.J.A.C. 8:43G-15.3(d), (e). MRO contended in oral argument that the medical records constituted con-sideration for BH&P's alleged promise to arbitrate. We disagree. As BH&P had a pre-existing right to the rec-ords for a cost-based fee, it does not "get something" out of the alleged agreement to arbitrate [***14] that it did not already have. Further, in exchange for assent to the arbitration provision, MRO did not promise BH&P any-thing it was not already obliged to provide.
7 MRO questioned whether BH&P was the pa-tient's attorney, because BH&P referred to the pa-tient as a "potential client," and asserted that it sought the records for itself, noting that doing so established its standing to dispute MRO's invoice. Whether BH&P is a "legally authorized repre-sentative" as the patient's attorney under N.J.A.C.
8:43G-15.3(d), or another entity authorized by the patient under N.J.A.C. 8:43G-15.3(e), is of no moment in our contract analysis. Kennedy Hospi-tals and MRO owe a legal duty to produce the records to either one.
[*185] In sum, the alleged agreement to arbitrate lacks consideration. BH&P may not be held to the terms of the arbitration provision in the invoice. B.
MRO argues that even if it had no contractual right to compel arbitration, BH&P surrendered any right to object simply by paying the invoiced amount, rather than presenting its dispute prior to payment. We disagree. In characterizing payment as a waiver, MRO relies on the terms of the invoice, which provide that payment consti-
tutes a complete waiver of any objection or dispute. But this [***15] begs the question. The term providing for waiver of disputes upon payment suffers from the same shortcoming as the term requiring arbitration. It lacks consideration.
Furthermore, a waiver is a "voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178
N.J. 169, 177, 836 A.2d 794 (2003) (emphasis added). Even assuming that BH&P, unlike an unsophisticated patient, fully understood that MRO intended to secure its non-objection by payment, there was nothing "voluntary" about the choice MRO presented. MRO demanded pre-payment before releasing the records. MRO thus pre-sented a patient with a dilemma: pay the invoice and surrender the right to raise any dispute relating to it; or raise a dispute, and incur an inevitable delay in receiving the records as the matter proceeds to arbitration, in dero-gation of the right to receive records in no more than thirty days.8 N.J.A.C. 8:43G-4.1(a)(25); N.J.A.C. 8:43G-
15.3(d).
8 In oral argument, MRO contended that "a dis-pute relating to this invoice" included a dispute regarding the accuracy or completeness of the records provided, notwithstanding the impossibil-ity of discovering the basis for such a dispute pri-or to payment and receipt of the records.
We reject the notion that MRO's invitation to call "for any questions regarding this [***16] invoice," in-cluded at the bottom of the [*186] invoice, offered BH&P a meaningful opportunity to contest the terms of the invoice. MRO did not invite calls to register an ob-jection. Nor would it be reasonable for the reader to con-clude that the invitation to pose questions indicated a willingness to deviate from the emphatic statement, "prepayment required," placed at the very top of the in-voice, or any other of its terms.
The purported waiver was the product of a threat to withhold the requested medical records for an indetermi-nate period of time while the dispute was referred to ar-bitration. See Restatement (Second) of Contracts, cmt. b
to § 73 (noting the "danger of express or implied threats to withhold performance" of a legal duty, and that "[a] bargain induced by an improper threat may be voidable for duress"); Id. § 175 ("If a party's manifestation of as-sent is [**963] induced by an improper threat by the other party that leaves the victim no reasonable alterna-tive, the contract is voidable by the victim."). Thus, BH&P's payment of the fee does not constitute an en-forceable waiver of the right to object to the arbitration provision that MRO unilaterally imposed.
Given our conclusion that the arbitration provision [***17] is unenforceable for a lack of consideration, we
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need not address whether the invoice is a consumer con-tract under Atalese, or, had there been an exchange of
consideration, whether the terms of the provision were sufficiently clear and unambiguous to be enforceable.
Affirmed.
190
----- Reprinted with permission of LexisNexis.
RACHELE LOUISE CASTELLO, Plaintiff-Appellant, v.
ALEXANDER M. WOHLER, M.D., Defendant-Respondent.
DOCKET NO. A-0337-14T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
446 N.J. Super. 1; 139 A.3d 1218; 2016 N.J. Super. LEXIS 87
May 16, 2016, Argued June 20, 2016, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication June 20, 2016. PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8850-11. COUNSEL: Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys; Mr. Stein, on the briefs). Charles E. Murray, III, argued the cause for respondent (Farkas & Donohue, L.L.C., attorneys; Mr. Murray, on the brief). Charles E. Murray, III, argued the cause for respondent (Farkas & Donohue, L.L.C., attorneys; Mr. Murray, on the brief). JUDGES: Before Judges LIHOTZ, FASCIALE and HIGBEE. The opinion of the court was delivered by FASCIALE, J.A.D. OPINION BY: FASCIALE OPINION
[*6] [**1221] The opinion of the court was deliv-ered by
FASCIALE, J.A.D.
In this medical negligence case, plaintiff appeals from two orders dated August 29, 2014: one order grant-ing defendant's motion to dismiss the complaint with prejudice; and one order denying plaintiff's cross-motion to adjourn the trial date and reopen discovery to obtain a new expert.
Defendant is a board-certified cardiothoracic and general surgeon. Plaintiff retained Dr. John E. Edoga, a general surgeon, to prepare an affidavit of merit (AOM) and expert report. Plaintiff's attorney used a copy of Dr. Edoga's curriculum vitae [***2] (the original CV) he had in his office and simultaneously served defendant with the complaint, AOM, and original CV.
In his AOM, Dr. Edoga stated he had been in "surgi-cal practice for more than [thirty-five] years[,] which is set forth in my [CV] attached hereto." The original CV attached to the AOM reflected Dr. Edoga was an attend-ing surgeon. Defendant's attorney waived the need for a Ferreira1 conference and signed a consent order waiving "any objection" to Dr. Edoga's qualifications.
1 Ferreira v. Rancocas Orthopedic Assocs., 178
N.J. 144, 836 A.2d 779 (2003).
In discovery, plaintiff's counsel produced Dr. Edoga's updated CV (the updated CV) and expert report. The updated CV stated that Dr. Edoga was an attending surgeon since 1976. This information was generally con-sistent with Dr. Edoga's statement in his AOM that he had been in surgical practice for approximately thirty-five years.
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Defendant's counsel deposed Dr. Edoga and learned, contrary to the information in the AOM and original and updated CVs, he had been retired for approximately five years before the medical procedure in question was per-formed. Three months after the deposition and weeks after the January 4, 2014 discovery end date (DED), de-fendant's counsel moved to bar Dr. Edoga's testimony for [***3] failure to comply with the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42, [*7] primarily [**1222] arguing Dr. Edoga was unqualified to testify because he retired from the practice of medicine. The motion was returnable approximately two weeks before trial. The court independently adjourned the trial date to resolve defendant's motion to bar Dr. Edoga's testimony, as well as other related motions.
There is no credible evidence that plaintiff or plain-tiff's counsel had knowledge that Dr. Edoga had been retired from the practice of medicine. Had such infor-mation been apparent from the AOM and original CV during the 120-day period, the parties would have partic-ipated in the Ferreira conference and identified the prob-lem. At that time, plaintiff would have had ample oppor-tunity to obtain and timely serve a new AOM from a different expert witness.
Under these facts, we agree that the judge properly barred Dr. Edoga's testimony because he had been retired for several years and otherwise failed to meet the statuto-ry requirements of the PFA. However, we conclude dis-missal of the complaint with prejudice ignored the pur-poses of the AOM statute (AMS), N.J.S.A. 2A:53A-26 to
-29.2 In our [***4] view, and in light of the strong pref-erence for adjudication on the merits, we conclude that an extension of discovery was warranted.
2 We note that pursuant to N.J.S.A. 2A:53A-27, "the person executing the [AOM] shall meet the requirements of a person who provides expert tes-timony or executes an affidavit as set forth in [the PFA]."
We hold, in medical negligence cases, where a plaintiff's counsel timely serves an AOM and reasonably relies on the AOM and expert's CV, which erroneously reflects that the witness is actively practicing medicine, and, through no fault of the plaintiff's counsel, the error is first discovered after the expiration of the 120-day deadline imposed under the AMS, exceptional circum-stances exist requiring the judge to allow a plaintiff suf-ficient time to retain a different expert witness who is qualified under the PFA, issue a new AOM, and serve a corresponding expert report. If warranted, the judge may include other procedures or requests [*8] for relief re-lated to the extension of discovery and service of a new AOM and expert report.
We therefore reverse the orders dismissing the com-plaint with prejudice and denying plaintiff's cross-motion to reopen discovery. We remand and direct [***5] the court to extend discovery, allow plaintiff sufficient time to retain a new expert, address any related discovery is-sues, and address whether other appropriate relief is war-ranted. I.
Plaintiff presented to defendant with difficulty breathing. Defendant examined plaintiff and diagnosed a giant paraesophageal hernia. A computerized tomogram showed that plaintiff's stomach was located in her chest, as opposed to its usual place below the diaphragm. Plain-tiff's medical condition warranted immediate attention. In June 2010, with plaintiff's consent, defendant performed surgery to repair the hernia.
Plaintiff experienced post-operative discomfort and her condition worsened. As a result, defendant performed an exploratory laparotomy and repaired a tear to the gas-tro-esophageal junction. Defendant discharged plaintiff to acute rehabilitation, but readmitted her to the hospital because of further complications. Plaintiff remained there until defendant granted plaintiff's request to transfer her to a hospital in Pittsburgh.
An esophageal surgeon examined plaintiff at the Pittsburgh hospital, diagnosed [**1223] an esophageal leak, and performed various medical procedures, includ-ing an esophagectomy, thoracotomy, [***6] and lapa-rotomy. In October 2010, plaintiff was discharged to a rehabilitation facility. Plaintiff returned home in Decem-ber 2010, almost six months after defendant performed the hernia repair operation.
In October 2011, plaintiff filed a complaint against defendant alleging that he deviated from accepted stand-ards of medical care and performed the hernia repair neg-ligently, which, purportedly, [*9] caused multiple addi-tional medical procedures and substantial pain and suf-fering.
In addition to serving Dr. Edoga's AOM with the complaint, plaintiff's counsel served defendant with a copy of Dr. Edoga's original CV, which plaintiff's coun-sel had retrieved from files located in his law firm. The original CV stated Dr. Edoga was an attending surgeon at Morristown Memorial Hospital from "1976 to pre-sent," and an assistant clinical professor of surgery from "1985 to present." The information in the original CV corroborated Dr. Edoga's statement in his AOM that he had been in surgical practice for more than thirty-five years.
In December 2011, defendant filed his answer to the complaint, and denied any negligence. The court sched-
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uled the Ferreira conference, which prompted a letter from plaintiff's [***7] counsel seeking input as to how defendant intended to proceed. Defendant's counsel ini-tially intended to object to the AOM because "[defend-ant] is a cardiac and thoracic surgeon[,] and given the fact that this matter would fall within that specialty or sub-specialty, Dr. Edoga's qualifications do not suffice under the [PFA]."
Plaintiff's counsel responded by advising that gen-eral surgeons, like Dr. Edoga, also perform laparoscopic repairs of paraesophageal hernias, especially because the surgery here was in the abdomen. He referred to the orig-inal CV, which also listed Dr. Edoga's 1997 publication pertaining to laparoscopic repair of paraesophageal her-nias. Defendant's counsel wrote to plaintiff's counsel, stating "[m]y client advises that some hospitals do permit general surgeons to perform this procedure."
Defendant's counsel withdrew the objection, waived the need for the Ferreira conference, and confirmed in a March 14, 2012 consent order that defendant waived "any objection" to the adequacy of the AOM. Based on the contents of the AOM and original CV, the parties had no reason to believe that Dr. Edoga had retired from the practice of medicine, and therefore they did not pursue the [***8] Ferreira conference to resolve whether the retirement rendered Dr. Edoga unqualified pursuant to the requirements [*10] enunciated in case law and the PFA. Consequently, plaintiff's counsel continued using Dr. Edoga as plaintiff's expert.
Over the next three years, the parties engaged in ex-tensive discovery. They propounded interrogatories, pro-duced document demands, served subpoenas, and de-posed several fact witnesses. Experts on both sides then reviewed the information obtained during the pretrial discovery.
Plaintiff's counsel served Dr. Edoga's expert report, dated May 21, 2013, well within the DED. Dr. Edoga opined that defendant's surgical technique caused esoph-ageal perforations, which defendant purportedly missed, misinterpreted, or ignored; defendant used covered stents in a manner well below accepted standards of care; and defendant failed to properly monitor plaintiff and seek timely consultations with other doctors. In his expert report, Dr. Edoga stated that he had published medical journal articles "on this subject," he had produced in-structional videos and trained surgical residents and at-tending [**1224] surgeons "to safely perform the sur-gery in question," and he had given lectures [***9] "dealing with the subject matter at hand."
Along with Dr. Edoga's expert report, plaintiff's counsel served defendant's counsel with a copy of the updated CV, which repeated that Dr. Edoga was an at-tending surgeon at Morristown Memorial Hospital from
"1976 to present," and an assistant clinical professor of surgery from "1985 to present." The updated CV listed Dr. Edoga as the president and chief operating officer of a company from "2002 to present" and referenced his teaching assignments, including training in surgical tech-nologies and techniques.
Defendant's counsel deposed Dr. Edoga on Novem-ber 1, 2013. Dr. Edoga's supplemental CV (the supple-mental CV) was produced and marked as an exhibit dur-ing the deposition. The supplemental CV, like the origi-nal CV and updated CV, stated that Dr. Edoga was an attending surgeon at Morristown Memorial Hospital from "1976 to present," and assistant clinical professor of surgery from "1985 to present."
[*11] In response to questions during his deposi-tion, Dr. Edoga testified he was affiliated with Columbia University as an assistant clinical professor, where he "gave a couple lectures" in 2009 and 2010. He also stated he was on the attending staff at Morristown [***10] Memorial Hospital, where he had privileges as an emeri-tus professor. Dr. Edoga admitted, however, that he re-tired from the active practice of medicine in 2005 and conceded he volunteered to teach two or three hours per week, which was not with an accredited medical school. Upon retirement, Dr. Edoga pursued medical device in-ventions and development, which was consistent with the additional reference to training in the updated CV.
Defendant's counsel did not move to disqualify Dr. Edoga before the expiration of the DED. Rather, in Janu-ary 2014, approximately three months after Dr. Edoga's deposition and well after the expiration of the DED, de-fendant's counsel filed a motion to bar Dr. Edoga's testi-mony. The motion was returnable approximately seven-teen days before the first trial date. Defendant's counsel argued in part that Dr. Edoga failed to satisfy the re-quirements of the PFA because he was not actively prac-ticing surgery at the time of the alleged malpractice, a fact that defendant's counsel urged was not clear until after Dr. Edoga's deposition.
Plaintiff opposed the motion, in part, by arguing that the court should waive the "same specialty or subspecial-ty" requirement under the [***11] PFA, N.J.S.A.
2A:53A-41(c). Plaintiff maintained there existed a lim-ited availability of surgeons with defendant's specialty who have surgically repaired giant paraesophageal herni-as. Alternatively, plaintiff's counsel requested, in the event the judge was inclined to bar Dr. Edoga's testimo-ny, a reasonable time in which to obtain another expert.
On March 17, 2014, the court granted defendant's motion and entered an order barring the testimony of Dr. Edoga. The court did not fully consider the merits of plaintiff's waiver argument because plaintiff failed to formally file a motion seeking waiver from compliance
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with the PFA, pursuant to N.J.S.A. 2A:53A-41(c). [*12] Rather, the judge disqualified Dr. Edoga from acting as an expert witness, concluding that plaintiff failed to satis-fy the requirements of N.J.S.A. 2A:53A-41(a)(1) or (2), which sets forth the requirements for an expert's testimo-ny under the PFA.
Discussing whether defendant's objection was time-ly, the judge concluded that defendant's counsel was not placed on "adequate notice of Dr. Edoga's qualifica-tions." She found Dr. Edoga's original CV "misrepre-sented his current status and [**1225] qualifications at the time it was served." As a result, the judge determined defendant's counsel was unable to object [***12] to Dr. Edoga's qualifications until after the deposition. Alt-hough the court acknowledged plaintiff's equitable ar-gument and "concerns . . . in light of the timing of th[e] [motion to bar Dr. Edoga]," and although she recognized the "apparent prejudice plaintiff will suffer . . . on the eve of the impending trial date," the court did not grant plain-tiff's request for a reasonable amount of time to obtain another expert. The court adjourned the trial date, how-ever, from March 2014 to April 28, 2014.
Because plaintiff was without an expert to support her allegations of medical negligence, defendant's coun-sel filed a motion for summary judgment, returnable April 25, 2014. While that motion was pending, plaintiff moved for reconsideration of the March 17, 2014 order barring Dr. Edoga's testimony and sought to adjourn the April 28, 2014 trial date and reopen discovery. The court denied defendant's motion for summary judgment with-out prejudice pending resolution of plaintiff's motion for reconsideration. The court also independently adjourned the trial date until October 14, 2014. On June 25, 2014, the court denied plaintiff's motion for reconsideration.
Defendant then filed his "motion to dismiss" [***13] plaintiff's complaint for failure to comply with the PFA. Plaintiff filed a cross-motion to reopen discovery, ad-journ the trial date, and permit plaintiff an opportunity to provide a new expert.
[*13] In plaintiff's motion to reopen discovery to obtain a new expert, plaintiff's counsel addressed the court's finding that Dr. Edoga's original CV was mislead-ing on its face. He reiterated
[t]he [d]efendant is quick to attribute an inference of deliberate misrepresentation on Dr. Edoga's qualification by virtue of the [CVs] presented. As indicated [previ-ously,] the CVs were delivered . . . not by virtue of any effort by Dr. Edoga to mis-represent his status -- much less an effort by the [p]laintiff to misrepresent [Dr. Edoga's] status.3]
3 Although the judge focused on the original CV, the record establishes that the contents of all the CVs and the AOM erroneously suggested Dr. Edoga was actively practicing medicine. On this record, there are no credible facts to suggest plaintiff's counsel knew before the deposition that Dr. Edoga had been retired for approximately five years before the procedure in question.
The judge concluded that plaintiff failed to demon-strate exceptional circumstances to allow extended dis-covery, found that [***14] defendant's counsel moved to bar Dr. Edoga's testimony "immediately and expeditious-ly" after taking his deposition, and determined defendant would be prejudiced as a result of prolonged litigation. On August 29, 2014, the judge entered the orders under review.
On appeal, plaintiff argues that Dr. Edoga satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1) and (2); the judge erred in not applying N.J.S.A. 2A:53A-41(c); and the judge abused her discretion by failing to adjourn the trial date, extend discovery, and allow plaintiff an opportunity to retain a new expert.
In June 2015, we granted The New Jersey Associa-tion for Justice (NJAJ) amicus curiae status and permis-sion to participate in oral argument. NJAJ challenges the constitutionality of the PFA, argues that the PFA was an improper exercise of legislative authority, contends that Dr. Edoga was qualified to testify, and, alternatively, asserts the judge abused her discretion by failing to give plaintiff time to replace Dr. Edoga. [**1226] II.
We begin by addressing the merits of the order dis-missing the complaint with prejudice. The court granted defendant's motion [*14] to dismiss based on plaintiff's failure to comply with the PFA. We afford this decision no deference, reviewing all decisions [***15] on mo-tions to dismiss de novo. Giannakopoulos v. Mid State
Mall, 438 N.J. Super. 595, 599, 106 A.3d 507 (App. Div.
2014), certif. denied, 221 N.J. 492, 114 A.3d 360 (2015). Our focus here is on whether Dr. Edoga satisfied the statutory and case law requirements to testify as an ex-pert.
Plaintiff contends that Dr. Edoga was qualified to testify as an expert because he satisfied the PFA, particu-larly the additional statutory requirements enumerated in N.J.S.A. 2A:53A-41(a)(1) and (2). In the alternative, plaintiff argues the judge erred by refusing to waive the expert qualification requirements imposed by the PFA,
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as permitted by N.J.S.A. 2A:53A-41(c). We address these contentions in turn. A.
The PFA establishes certain qualifications that ex-pert witnesses in medical malpractice actions must pos-sess. Nicholas v. Mynster, 213 N.J. 463, 479, 64 A.3d
536 (2013). N.J.S.A. 2A:53A-41 provides, in pertinent part:
In an action alleging medical malprac-tice, a person shall not give expert testi-
mony or execute an affidavit pursuant to the provisions of P.L. 1995, c. 139 (C. 2A:53A-26 et seq.) on the appropriate standard of practice or care unless the
person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecial-
ist recognized by the American Board of Medi-cal Specialties or the American [***16] Osteo-pathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic As-sociation, the person
providing the testimony
shall have specialized at
the time of the occurrence that is the basis for the ac-tion in the same specialty
or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic As-sociation, as the party against whom or on whose behalf the testimony is of-fered, and if the person against whom or on whose behalf the testimony is be-ing offered is board certi-
fied and the care or treat-ment at issue involves that board specialty or subspe-
cialty recognized by the American Board of Medi-cal Specialties or the American Osteopathic As-sociation, the expert wit-
ness shall be:
[*15] (1) a physician credentialed by a hospi-tal to treat patients for the medical condition, or to per-form the procedure, that is the basis for the claim or ac-tion; or
(2) a
specialist or
subspecial-
ist recog-nized by the American Board of Medical Specialties or the American Osteopathic Association who is
board certi-
fied in the
same spe-
cialty or
subspecial-
ty, recog-nized by the [***17] American Board of Medical Specialties or the American Osteopathic Association, and during
the year
immediately
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preceding
the date of
the occur-
rence that is the basis for the claim or action, shall
have devot-
ed a majori-
ty of his
professional
time to ei-
ther:
(a) the active clini-
cal practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist [**1227] or subspecial-ist recog-nized by the American Board of Medical Specialties or the American Osteopathic Association, the active
clinical
practice of
that special-
ty or sub-
specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(b) the instruction
of students in an ac-
credited
medical
school, oth-
er accredit-
ed health
professional
school or
accredited
residency or
clinical re-
search pro-
gram in the same health care profes-sion in which the defendant is licensed, and, if that party is a specialist or subspecial-ist recog-nized by the American Board of Medical Specialties or the American Osteopathic Association, an accredit-ed medical school, health pro-fessional school or accredited residency or clinical re-search pro-gram in the same spe-cialty or subspecialty [***18] recognized by the American Board of
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Medical Specialties or the American Osteopathic Association; or
(c) both.
[(Emphasis added).]
In Nicholas, the Court provided critical guidance for the bench and practitioners when applying these provi-sions. Supra, 213 N.J. at 479-88, 64 A.3d 536. Specifi-cally, the Court explained N.J.S.A. 2A:53A-41(a) impos-es certain preliminary qualifications of an expert who seeks to testify against a defendant physician who prac-tices a specialty, but who is not otherwise board certified. Nicholas, supra, 213 N.J. at 481-82, 64 A.3d 536. Ex-perts must satisfy these minimum requirements as a pre-requisite to presenting testimony. Moreover, if a defend-ant is board certified, N.J.S.A. 2A:53A-41(a) requires that the testifying expert satisfy additional qualifications set forth in subsections (a)(1) or (a)(2). Id. at 482, 64 A.3d
536.
[*16] In her argument that the judge erred by bar-ring Dr. Edoga from testifying, plaintiff focuses primari-ly on the added qualifications enumerated in N.J.S.A.
2A:53A-41(a)(1) (requiring the expert be credentialed) and (a)(2)(b) (generally requiring the expert devote a majority of his/her professional time towards instruction of students in an accredited school). Certainly, Dr. Edoga needed to meet the additional qualifications of (a)(1) or (a)(2) because defendant was board certified. But before we reach whether Dr. Edoga satisfied the added [***19] statutory qualifications, we address whether he met the preliminary qualifications mandated by N.J.S.A. 2A:53A-
41(a). (i)
As to the preliminary qualification of specialization, the expert "shall have specialized [in the same specialty as a defendant physician] at the time of the occurrence." N.J.S.A. 2A:53A-41(a). Moreover, "[w]hen a physician is a specialist and the basis of the malpractice action 'in-volves' the physician's specialty, the challenging expert must practice in the same specialty." Nicholas, supra,
213 N.J. at 481-82, 64 A.3d 536 (citing Buck v. Henry,
207 N.J. 377, 391, 25 A.3d 240 (2011)) (emphasis add-ed).
It is undisputed that Dr. Edoga retired from the prac-tice of medicine in 2005, approximately five years before defendant performed the hernia repair operation. Dr. Edoga testified that the last time he performed a parae-sophageal hernia repair was in 2005. He also testified that the last time he was involved in repairing a tear of the esophagus was in 2005. In his marketing material, Dr. Edoga advertised that he was "retired from the active practice of surgery [as early as] November of 2004 and now function[ed] as the Chief Executive [**1228] Of-ficer of a start-up surgical device company."
The Court has stated unequivocally that a plaintiff "cannot establish the standard of care through an expert who does not practice in the same medical [***20] spe-cialties as [a] defendant physician[]." Nicholas, supra,
213 N.J. at 468, 64 A.3d 536. As a [*17] result, Dr. Edoga did not meet the minimum requirement mandated by N.J.S.A. 2A:53A-41(a). (ii)
Because Dr. Edoga did not actively practice medi-cine "at the time of the occurrence" in the same specialty as defendant, we need not reach whether he met the add-ed qualifications of (a)(1) or (a)(2) under the PFA. How-ever, we observe that Dr. Edoga also failed to meet the additional requirements contained in (a)(1) or (a)(2). The additional requirements under N.J.S.A. 2A:53A-41(a)(1) and (a)(2) apply when the defendant physician is board certified and the course of treatment in dispute involves that specialty. In such a case, the expert must meet one of two criteria.
First, under N.J.S.A. 2A:53A-41(a)(1), an expert may be "a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action." This prong is designed to act as a substitute for board certification. Specifically, although the expert may not be board certi-fied in the area in question, he or she may be creden-tialed by his or her hospital to treat patients for the medi-cal condition at issue. Nicholas, supra, 213 N.J. at 482,
64 A.3d 536. Importantly, "[t]he hospital-credentialing provision is not an alternative to the same-specialty [***21] requirement." Ibid. However, a necessary pre-cursor to being credentialed by a hospital is that the ex-pert must be actively practicing and treating the condi-tion at issue.
Here, Dr. Edoga was not credentialed by a hospital to treat the condition at issue when plaintiff's claim arose. At the time defendant performed the hernia sur-gery in 2010, Dr. Edoga was not privileged to "treat pa-tients for the medical condition, or to perform the proce-
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dure, that is the basis for the claim or action." N.J.S.A.
2A:53A-41(a)(1). Years before the procedure, Dr. Edoga failed to maintain his medical malpractice insurance and forfeited his privileges at Morristown Memorial Hospi-tal. As a result, Dr. Edoga fails to satisfy the added re-quirement of (a)(1).
[*18] Second, N.J.S.A. 2A:53A-41(a)(2) requires the expert to be a board certified specialist or subspecial-ist in the same specialty as the defendant physician, and during the year immediately prior to the occurrence, have devoted the majority of his or her professional time to active practice in that same specialty or subspecialty, or the instruction of students in an accredited medical school, also in the same specialty or subspecialty, or both.
The undisputed evidence shows Dr. Edoga did not, "during the [***22] year immediately preceding the date of the occurrence," devote the majority of his profession-al time to either active clinical practice or the instruction of students in a statutorily defined accredited institution. Although Dr. Edoga stated that he "teaches," he admitted he was not doing so in a "teaching position . . . or profes-sor[ship]," and he testified that his instruction amounted to two or three hours per week. As a result, Dr. Edoga also failed to satisfy the requirements of N.J.S.A.
2A:53A-41(a)(2). B.
We reject plaintiff's contention that the judge erred by refusing to waive the [**1229] expert qualification requirements imposed by the PFA. Under certain cir-cumstances, a court may waive compliance with the PFA pursuant to N.J.S.A. 2A:53A-41(c), which provides:
A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court deter-
mines that the expert possesses sufficient training, [***23] experience and knowledge to provide the testimony as a
result of active involvement in, or full-time
teaching of, medicine in the applicable ar-ea of practice or a related field of medi-cine.
[(Emphasis added).]
A party seeking a waiver must file a motion for that relief, which plaintiff failed to do. Instead, plaintiff's counsel informally asked the court to waive the require-ments pursuant to subsection (c). [*19] Even though no motion was filed, we consider the merits of plaintiff's contentions.
The statutory obligation is to demonstrate good faith efforts to "identify an expert in the same specialty or subspecialty." Ibid. There is no evidence that plaintiff was unable to locate an actively practicing cardiothoracic or general surgeon to review the merits of plaintiff's medical malpractice allegations. Plaintiff argues counsel was unable to locate surgeons who have performed the exact procedure defendant performed in 2010, but the obligation is only to show good faith efforts to identify an expert in the same specialty or subspecialty, which plaintiff failed to do.
Even if plaintiff made the requisite showing of good faith, Dr. Edoga's training, experience, and knowledge are not derived from his "active [***24] involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine." Ibid. As a re-sult, we see no basis for a waiver under section (c). III.
We now turn to the order denying plaintiff's cross-motion to adjourn the April 28, 2014 trial date, reopen limited discovery, and allow plaintiff an opportunity to obtain a new expert. The request to adjourn the trial date is not an issue because the court had independently ad-journed the trial from April 2014 to October 2014. We focus on the dismissal of the complaint with prejudice and whether the court should have permitted plaintiff to reopen discovery and obtain a new expert.
We conclude that denying plaintiff's cross-motion, which led to the dismissal of the complaint with preju-dice, substantially ignored the purposes of the AMS. We reach this conclusion reemphasizing the important rea-sons for a Ferreira conference and the strong preference for adjudication of disputes on the merits. Under the unique facts of this case, we conclude that exceptional circumstances existed to extend limited discovery. [*20] A.
The dual purpose of the AMS is "to weed out frivo-lous lawsuits early in the litigation while, [***25] at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Ferreira, supra, 178
N.J. at 150, 836 A.2d 779 (quoting Hubbard v. Reed, 168
N.J. 387, 395, 774 A.2d 495 (2001)); see also Buck, su-
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pra, 207 N.J. at 383, 25 A.3d 240 (explaining "[t]he pur-pose of the [AMS] is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones"). Con-sidering the facts of the case before us, dismissing [**1230] plaintiff's complaint with prejudice would not serve these purposes. On this record, there is no credible evidence to suggest that plaintiff's complaint is frivolous.
Plaintiff's counsel attempted in good faith to comply with the PFA and N.J.S.A. 2A:53A-27, which provides, in pertinent part:
In any action for damages for personal injuries, wrongful death or property dam-age resulting from an alleged act of mal-practice or negligence by a licensed per-son in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appro-priate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside ac-ceptable professional or occupational standards or treatment [***26] practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this sec-tion, upon a finding of good cause.
In medical malpractice cases, the AMS requires the affi-ant to satisfy the requirements of the PFA, pursuant to N.J.S.A. 2A:53A-27, which further provides in relevant part that
[i]n the case of an action for medical malpractice, the person executing the af-fidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L. 2004, c. 17 (C. 2A:53A-41).
Here, although the judge concluded that the original CV was misleading on its face, she did not address the root of the problem. The record reflects plaintiff's coun-sel produced the original CV in good faith and there is no reason to believe from a review of the original CV or AOM that plaintiff or plaintiff's counsel knew Dr. Edoga had retired from the active practice of medicine. Moreo-ver, this is not a situation that amounted to carelessness or inadvertence by plaintiff's counsel in using the origi-
nal CV, because [*21] the contents of the AOM and updated and supplemental CVs also suggest that Dr. Edoga was actively practicing medicine. B.
In malpractice [***27] cases, the qualifications of a plaintiff's expert are expected to be addressed early in the litigation. There exists a well-settled procedure to ad-dress potential problems with compliance with the AMS. In Buck, the Court reaffirmed the Ferreira requirement for courts to conduct a case management conference within "ninety days of the service of an answer in all malpractice actions." Supra, 207 N.J. at 394, 25 A.3d
240. The Court further noted that "[t]he painful experi-ence of our [AOM] jurisprudence reveals the compelling need for such conferences at an early stage before prob-lems arise." Ibid. (first alteration in original) (quoting Ferreira, supra, 178 N.J. at 155, 836 A.2d 779). A Fer-
reira conference serves to avoid inadvertent and tech-nical errors in timely service of the affidavit. See Fer-
reira, supra, 178 N.J. at 154-55, 836 A.2d 779. It also "require[s] [a defendant] to advise the court whether he [or she] has any objections to the adequacy of the affida-vit." Id. at 155, 836 A.2d 779. Ultimately, the conference serves to resolve potential discovery issues -- including compliance with the AMS -- before they result in "side-shows" of dueling motions. Id. at 154-55, 836 A.2d 779.
Here, defendant's counsel understandably waived the Ferreira conference in part by relying on the AOM, in which Dr. Edoga stated he had been in surgical practice [**1231] for thirty-five years, and the original [***28] CV, which indicated Dr. Edoga was an attending surgeon at Morristown Memorial Hospital from "1976 to pre-sent," and an assistant clinical professor of surgery from "1985 to present." Counsel's only concern was whether Dr. Edoga shared the same specialty under the PFA to issue the AOM and render expert opinion testimony against defendant.
Had defendant's counsel known that Dr. Edoga had been retired five years before the alleged malpractice, defendant's counsel would have proceeded with the Fer-
reira conference challenging [*22] Dr. Edoga's qualifi-cations under the AMS and PFA. Certainly, had the Fer-
reira conference occurred, plaintiff would have had the opportunity to comply with the AMS and PFA by serv-ing an AOM from a different expert witness before the expiration of the 120--day deadline. Through no fault of either counsel, Dr. Edoga's retirement was not known during the 120-day deadline.
In general, to temper an inflexible application of the AMS, the Supreme Court has carved out exceptions for extraordinary circumstances, Cornblatt v. Barow, 153
N.J. 218, 246-47, 708 A.2d 401 (1998); Tischler v. Watts,
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177 N.J. 243, 246-47, 827 A.2d 1036 (2003); for substan-tial compliance with the statutory requirements, Fink v.
Thompson, 167 N.J. 551, 564-65, 772 A.2d 386 (2001); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 357, 771
A.2d 1141 (2001); for equitable estoppel and laches, Knorr v. Smeal, 178 N.J. 169, 178-81, 836 A.2d 794
(2003); and for technical deficiencies in the contents or service of the [***29] affidavit that could have been cured within the statutory time limit, Ferreira, supra,
178 N.J. at 154-55, 836 A.2d 779. In the context of the AMS, these equitable doctrines are not directly implicat-ed on this appeal because the question is not whether to permit the use of Dr. Edoga's AOM, but rather, whether to extend discovery so plaintiff can retain a new expert.
To illustrate this point, we turn to defendant's reli-ance on Medina v. Pitta, 442 N.J. Super. 1, 120 A.3d 944
(App. Div.), certif. denied, 223 N.J. 555, 127 A.3d 701
(2015). Defendant argues that the doctrines of substantial compliance and extraordinary circumstances are inappli-cable. Defendant contends that once the court barred Dr. Edoga's testimony, he was entitled to summary judg-ment. Based on our reasoning in Medina, he maintains that dismissal with prejudice is appropriate.
Defendant's reliance on Medina is misplaced. There the parties were only concerned with whether the plain-tiff's expert satisfied the requirements under the PFA; here, the focus is on the unintended consequences that flowed from plaintiff's counsel's reasonable reliance on the AOM and original CV, which erroneously [*23] reflected that Dr. Edoga had been practicing medicine, not whether these equitable doctrines allowed the contin-ued use of Dr. Edoga's AOM and expert opinions. The focus is on [***30] whether exceptional circumstances existed to extend discovery, not to continue with Dr. Edoga as plaintiff's expert.
The facts in Medina are distinguishable. There, be-fore service of the AOM and expert's CV, the expert told the plaintiff's attorney he was retired and asked if that would be a problem. Id. at 14, 120 A.3d 944. The plain-tiff's attorney replied he would "look into it," but he did not think it would be a problem. Ibid. Here, there is no evidence in the record to show that plaintiff's counsel had any reason to know, when he served the original CV with the AOM and complaint, or even service of the updated CV with Dr. Edoga's expert report, that Dr. Edoga retired five years before the alleged malpractice. On the contra-ry, Dr. Edoga stated in his AOM he [**1232] had been involved in surgical practice for roughly thirty-five years.
Additionally, in Medina, the expert gave deposition testimony that he had retired, but unlike here, the plain-tiff in Medina did not file a motion to obtain a new ex-pert or extend the DED. Id. at 12-13, 120 A.3d 944. In-
stead, in opposition to the defendant's motion for sum-mary judgment, the plaintiff maintained his expert satis-fied the PFA. Id. at 13, 120 A.3d 944. The court disa-greed and granted summary judgment to the defendant. [***31] Ibid. On reconsideration, the plaintiff reasserted his expert satisfied the PFA, and for the first time argued that the doctrines of substantial compliance and extraor-dinary circumstances warranted a dismissal without prej-udice. Id. at 14, 120 A.3d 944.
We agree with defendant's contention that under the facts of Medina, the equitable doctrines of substantial compliance and extraordinary circumstances were una-vailable. In Medina, we rejected the plaintiff's contention that the dismissal should have been without prejudice. Id.
at 20-25, 120 A.3d 944. We determined that the doctrine of substantial compliance "may be invoked when dismis-sal is sought based upon [technical] deficiencies in an [*24] AOM." Id. at 25, 120 A.3d 944. The doctrine is "not intended to shield a plaintiff from the dismissal of a claim that is substantively defective." Ibid. We pointed out that application of the doctrine would erode our summary judgment jurisprudence and eviscerate the re-medial purpose of the PFA, to provide stringent require-ments for expert qualification. Ibid. Similarly, we stated that a summary judgment analysis does not allow appli-cation of the doctrine of extraordinary circumstances. Ibid.
Here, however, the question is not whether the doc-trines of substantial compliance [***32] and extraordi-nary circumstances warrant continued use of Dr. Edoga's testimony; rather, the issue is whether exceptional cir-cumstances exist allowing for an extension of discovery permitting plaintiff time to retain a different expert wit-ness because, unbeknownst to plaintiff and her attorney, the parties learned after the expiration of the 120-day deadline that the references to Dr. Edoga's active medical practice in the AOM and original CV were inaccurate. Therefore, Medina's holding does not govern our review. C.
Our review of the trial judge's decision not to extend discovery is deferential. Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 371, 25 A.3d 221 (2011). "We generally defer to a trial court's disposition of dis-covery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J.
Super. 68, 80, 874 A.2d 597 (App. Div.) (citing Payton v.
N.J. Tpk. Auth., 148 N.J. 524, 559, 691 A.2d 321 (1997)), certif. denied, 185 N.J. 296, 884 A.2d 1266 (2005).
An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably de-parted from established policies, or rested on an imper-
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missible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.
561, 571, 796 A.2d 182 (2002) (quoting Achacoso-
Sanchez v. Immigration and Naturalization Serv., 779
F.2d 1260, 1265 [*25] (7th Cir. 1985)). We respectfully conclude such an abuse of discretion occurred here.
"The right of a trial court to manage the orderly pro-gression of cases before it has been recognized as inher-ent in its [***33] function." Casino Reinvestment Dev.
Auth. v. Lustgarten, 332 N.J. Super. 472, 488, 753 A.2d
1190 (App. Div.), certif. denied, 165 N.J. 607, 762 A.2d
221 (2000). Rule 4:24-1(c) provides in pertinent part that "[n]o [**1233] extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." The mov-ing party must satisfy four inquiries to extend discovery based on exceptional circumstances:
(1) why discovery has not been com-pleted within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the ex-tension of time.
[Rivers, supra, 378 N.J. Super. at 79,
874 A.2d 597.]
As to the first prong, plaintiff's counsel diligently pursued compliance with the AMS and the PFA. Plain-tiff's counsel produced the AOM timely, defendant's counsel waived the Ferreira conference and "any objec-tion" to Dr. Edoga, and plaintiff's counsel produced Dr. Edoga's expert report and updated CV timely. Plaintiff's counsel did not know about any objection to Dr. Edoga's qualifications until after the DED expired.
As to the second prong, the additional [***34] dis-covery sought is essential to plaintiff's case. Without an expert, plaintiff's case will be dismissed, even though there is no credible evidence to suggest that plaintiff's claim is frivolous.
As to the third prong, plaintiff's counsel has a rea-sonable explanation for not requesting an extension with-in the DED. Defendant's counsel did not inform plain-tiff's counsel at Dr. Edoga's deposition that he would be moving to bar the testimony of Dr. Edoga. Had that oc-curred, plaintiff's counsel would have had sufficient time to request an extension of time in which to retain a new expert. And because a trial date had not yet been fixed at
[*26] that point, the standard would have been one of good cause rather than exceptional circumstances.
As to the fourth prong, the circumstances were be-yond plaintiff's control. There was no need to request an extension of discovery before the expiration of the DED, even after Dr. Edoga's deposition, because there was no objection to Dr. Edoga's qualifications at that point. It was not until after the DED expired that plaintiff's coun-sel first learned that defendant would be seeking to bar Dr. Edoga's testimony. Certainly, it was reasonable for plaintiff's counsel [***35] to rely on the contents of the AOM and CVs.
We disagree with the finding that defendant's coun-sel moved to bar Dr. Edoga's testimony "immediately and expeditiously" after taking his deposition. The depo-sition occurred on November 1, 2013, but the motion was not filed until January 29, 2014. Given the fact that defendant signed the consent order in March 2012, waiv-ing "any objection[s]" to Dr. Edoga's qualifications, and in light of the fact that defendant did not object before the DED expired, plaintiff's counsel had no reason to retain a new expert until defendant filed the motion to bar, returnable on the eve of trial. Dismissing plaintiff's complaint with prejudice would encourage procedural gamesmanship and does not further the purposes of im-posing enhanced qualification requirements for expert witnesses.4 Ferreira, supra, 178 N.J. at 154, 836 A.2d
779.
4 The judge did not find that defendant's counsel engaged in procedural gamesmanship.
D.
[**1234] It is well settled that because "dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party." Irani v.
K-Mart Corp., 281 N.J. Super. 383, 387, 657 A.2d 911
(App. Div. 1995) (quoting Crispin v. Volkswagenwerk,
A.G., 96 N.J. 336, 345, 476 A.2d 250 (1984)). "Certainly, there has been no showing of prejudice to [defendant] that would [*27] outweigh the [***36] strong prefer-ence for adjudication on the merits rather than final dis-position for procedural reasons, or would warrant visit-ing on the innocent client[] an error of [her] attorney." Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super.
198, 207, 762 A.2d 237 (App. Div. 2000) (citations omit-ted). We conclude "[t]his is not a case of a plaintiff sleeping on [her] rights and ignoring statutorily imposed deadlines." Buck, supra, 207 N.J. at 395, 25 A.3d 240. "Rather, this is a case of a plaintiff who has made good-faith attempts to satisfy the statute." Ibid. IV.
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Finally, both plaintiff and the NJAJ argue that the PFA violates Article VI, Section 2, Paragraph 3 of the
New Jersey Constitution, which states, in part:
The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.
Our courts have uniformly recognized the constitution-ality of the PFA. See e.g., Ferreira, supra, 178 N.J. at
149 n.1, 836 A.2d 779; Medina, supra, 442 N.J. Super. at
27, 120 A.3d 944. Moreover, to the extent that NJAJ also argues that the PFA "was an improper exercise of legis-lative authority" that "runs afoul of the established meth-
ods for creating new rules of evidence," we conclude this argument is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). See
N.J. State Bar Ass'n v. State, 387 N.J. Super. 24, 50, 902
A.2d 944 (App. Div.) (reaffirming the constitutionality of the PFA and explaining it does not unconstitutionally infringe on the rules of evidence), certif. [***37] denied, 188 N.J. 491, 909 A.2d 726 (2006).
We reverse the order dismissing the complaint with prejudice; reverse the order denying plaintiff's cross-motion to adjourn the trial date and reopen discovery; and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Moreover, the judge has the discretion on remand to impose, if warrant-ed, other appropriate relief.
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JAMES R. JARRELL AND SHEILA G. JARRELL, HIS WIFE, PLAINTIFFS-APPELLANTS,
v. RICHARD A. KAUL, M.D. AND MARKET STREET SURGICAL CENTER,
DEFENDANTS-RESPONDENTS, AND JOHN T. FORD, SUSSEX COUNTY TOTAL HEALTH CENTER, INC.,
DEFENDANTS.
A-42 September Term 2013, 072363
SUPREME COURT OF NEW JERSEY
223 N.J. 294; 123 A.3d 1022; 2015 N.J. LEXIS 963
October 20, 2014, Argued September 29, 2015, Decided
PRIOR HISTORY: [***1] On certification to the Superior Court, Appellate Division. Jarrell v. Kaul, 2013 N.J. Super. Unpub. LEXIS 469
(App.Div., Mar. 1, 2013) COUNSEL: Lewis Stein argued the cause for appellants (Nusbaum, Stein, Goldstein, Bronstein & Kron). Jeffrey B. Randolph argued the cause for respondent Richard A. Kaul, M.D. Peter E. Rhatican argued the cause for respondent Mar-ket Street Surgical Center. Abbott S. Brown argued the cause for amicus curiae New Jersey Association for Justice (Lomurro, Davison, East-
man and Munoz, attorneys; Mr. Brown and Christina
Vassiliou Harvey, on the brief). JUDGES: JUDGE CUFF (temporarily assigned) deliv-ered [***10] the opinion of the Court. JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUDGE CUFF's opinion. JUSTICE ALBIN filed a separate opinion dissenting in part and concurring in part, in which CHIEF JUSTICE RABNER joins. OPINION BY: CUFF
OPINION
[*297] [**1023] JUDGE CUFF (temporarily as-signed) delivered the opinion of the Court.
In this appeal, we examine three issues related to the statutory requirement that physicians licensed to practice medicine in New Jersey and providing medical care in this State must obtain and maintain medical malpractice liability insurance. The first issue presented in this appeal is whether an injured patient may bring a direct action against a negligent, uninsured physician. The second issue is whether a physician has a duty to advise a pro-spective patient that he is in compliance with the statuto-ry medical malpractice liability [**1024] insurance requirement and whether the failure to obtain such insur-ance gives rise to a lack of informed consent claim. The third issue is whether a health care facility that grants privileges to a physician to use its facilities to treat pa-tients has a continuing duty to ascertain a physician's compliance with the insurance requirement.
Plaintiff James [***11] R. Jarrell sought treatment for persistent pain in his back from defendant Dr. Rich-ard A. Kaul, a board certified anesthesiologist. The doc-tor performed a spinal fusion procedure at a surgical cen-ter. At the time of the operation, Dr. Kaul was required to have medical malpractice liability insurance or to have posted a letter of credit. The medical malpractice liability insurance issued to him expressly excluded spinal surgi-
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cal procedures. [*298] Dr. Kaul instead maintains that he produced a suitable letter of credit.
The surgery performed by Dr. Kaul actually in-creased Jarrell's discomfort, so he sought treatment from another physician. Another surgeon performed a surgical revision of the procedure performed by Dr. Kaul.
Jarrell and his wife, Sheila, filed a complaint alleg-ing that Dr. Kaul negligently performed the initial spinal procedure, and they sought compensatory damages for pain and suffering and economic losses caused by the physician's negligence. They also asserted a direct claim against Dr. Kaul based on his status as an uninsured phy-sician at the time he treated Jarrell. Based on Dr. Kaul's lack of liability insurance, plaintiffs also asserted claims seeking damages for misrepresentation, [***12] fraud, deceit, and lack of informed consent. They also asserted a negligent hiring claim against the facility where Dr. Kaul performed the surgery. Jarrell's wife asserted a loss of consortium claim. Only the negligence claim proceed-ed to trial. A jury awarded $500,000 to Jarrell and $250,000 to his wife. All of the other claims were dis-missed prior to trial.
Although it is undisputed that Dr. Kaul was unin-sured for the procedure he performed on Jarrell, we af-firm the dismissal of Jarrell's direct claim against the physician for his failure to maintain insurance. The stat-ute imposing the medical malpractice liability insurance requirement does not expressly authorize a direct action against a noncompliant physician and neither the lan-guage nor the purpose of the statute supports such a claim.
Although a reasonably prudent patient may consider a physician's compliance with the statutorily imposed liability insurance requirement material information, lack of compliance or failure to disclose compliance does not necessarily provide the predicate for an informed consent claim. Indeed, using the informed consent doctrine to address the financial insecurity of a physician and the inability [***13] of a patient to satisfy a judgment or to fund a settlement [*299] would represent a marked de-parture from our prior informed consent jurisprudence. We decline to follow that course.
Finally, we hold that a health care facility that grants privileges to physicians has a continuing duty to ensure that those physicians have and maintain the required medical malpractice liability insurance or have posted a suitable letter of credit that conforms with the statutory requirement. I.
Jarrell suffered from chronic back pain for many years. His chiropractor referred him to Dr. Kaul, a board
certified anesthesiologist, in September 2005. Dr. Kaul's practice focused on pain management and minimally invasive spinal procedures. In 2005, Dr. Kaul saw pa-tients and performed procedures at Market Street Surgi-cal Center (MSSC) in Saddle Brook several times [**1025] a week. Dr. Kaul also served as the Medical Director of MSSC until 2007.
Dr. Kaul diagnosed Jarrell with a herniated lumbar disc, lumbar radiculopathy, and discogenic back pain. On October 11, 2005, Dr. Kaul performed a spinal fusion procedure in which he fused the L4, L5, and S1 vertebrae using two mesh cages attached by rods and pedicle screws. Immediately [***14] following the surgery, Jarrell experienced new pain in his left side that wors-ened over time and eventually led to a "drop foot,"1 caus-ing him to fall.
1 "Drop foot" is "a general term for difficulty lifting the front part of the foot. If you have foot drop, you may drag the front of your foot on the ground when you walk." Mayo Clinic Staff, Dis-
eases and Conditions: Foot drop, MayoClinic.org (last visited June 19, 2015), www.mayoclinic.org/disease-conditions/foot-drop/basics/definition/con-20032918.
A friend referred Jarrell to Dr. Alfred Steinberger, a board certified neurosurgeon, in January 2006. Follow-ing an examination and diagnostic tests, Dr. Steinberger concluded that Dr. Kaul improperly placed some screws that pinched a nerve causing the pain and drop foot. On January 31, 2006, Dr. Steinberger removed and replaced the fixation devices implanted by Dr. Kaul in [*300] October 2005. Jarrell's pain decreased immediately fol-lowing the second procedure; however, at the time of his January 2012 trial, he still required pain medication, in-cluding fentanyl patches, and his physical activity was limited.
Dr. Kaul was educated in England, where he prac-ticed as a dental anesthesiologist. He relocated [***15] to New Jersey and obtained a license to practice medi-cine in 1995. Thereafter, he commenced a pain manage-ment practice and performed various spinal procedures, including the spinal fusion procedure he conducted on Jarrell.
At the time of the October 2005 spinal procedure, Dr. Kaul had a malpractice insurance policy that specifi-cally excluded spinal surgery. He claimed to have $500,000 in liquid assets but did not have a letter of credit from a bank or other financial institution. Dr. Kaul did not discuss his insurance coverage, or lack thereof, with Jarrell or his wife. Neither Jarrell nor his wife in-quired about Dr. Kaul's insurance coverage.
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The Board of Medical Examiners (BME)2 revoked Dr. Kaul's license to practice medicine in 2012.
2 The BME is the administrative body that regu-lates the practice of medicine in this State.
II.
Jarrell and his wife filed a nine-count complaint in the Superior Court against Dr. Kaul and MSSC. Jarrell asserted a claim against Dr. Kaul for medical negligence alleging that he departed from accepted standards of medical care in his choice of procedure and his selection of medical devices for use in the surgery. (Count One). Jarrell further alleged that Dr. Kaul [***16] misrepre-sented his qualifications and training, thereby wrongfully obtaining his informed consent for the surgery. (Count Two). Jarrell also claimed that MSSC negligently and unreasonably facilitated performance of an unauthorized surgical procedure by an unqualified [*301] physician. (Count Five). His wife asserted a loss of consortium claim. (Count Seven).
Jarrell also alleged that Dr. Kaul performed the Oc-tober 2005 surgical procedure without the statutorily required malpractice insurance or letter of credit and withheld this information from him. He alleged that Dr. Kaul's noncompliance formed the basis for a claim sounding in deceit, fraudulent misrepresentation, and lack of informed consent (Count Eight), as [**1026] well as a battery claim (Count Nine). Plaintiffs also as-serted claims against John T. Ford and Sussex County Total Health Center, Inc. (Counts Three and Four), which were dismissed.
Plaintiffs' motion for summary judgment based on Dr. Kaul's failure to carry medical malpractice insurance that covered the spinal procedure performed on Jarrell was denied. The motion judge reasoned that Dr. Kaul had informed the BME that he had substantially com-plied with the statutory requirement, and [***17] the BME had not placed any limits on his license to practice medicine. Plaintiffs renewed this motion immediately prior to trial and Dr. Kaul filed a cross-motion for sum-mary judgment. The trial court granted Dr. Kaul's cross-motion. The court reasoned that Basil v. Wolf, 193 N.J.
38, 935 A.2d 1154 (2007), precluded any form of direct action against Dr. Kaul for failing to maintain insurance. The court held that there was no cause of action against Dr. Kaul for deceit, misrepresentation, lack of informed consent, and battery based on the failure to maintain in-surance. The trial court also dismissed plaintiffs' claims against MSSC because plaintiffs lacked an expert who would testify that MSSC deviated from accepted stand-ards of medical care by failing to properly ascertain Dr. Kaul's credentials and permitting an uninsured and un-
qualified physician to perform spinal procedures in its facility.
Trial proceeded solely against Dr. Kaul limited to the issue of medical negligence. The jury found that Dr. Kaul negligently performed the October 2005 spinal fu-sion and his negligence proximately caused injury to Jarrell. The jury awarded $500,000 in damages to Jarrell for his pain, suffering, and disability, and [*302] $250,000 to his wife for loss [***18] of consortium. All post-trial motions for a new trial or remittitur were de-nied.
Dr. Kaul appealed, arguing that significant trial er-rors required a reversal of the judgment and a new trial. Plaintiffs filed a cross-appeal contending that the trial court erroneously denied their motion for summary judgment and erroneously granted partial summary judgment in favor of Dr. Kaul based on Dr. Kaul's lack of insurance. They also contended that the trial court erred in granting summary judgment in favor of MSSC based on Dr. Kaul's credentials and lack of insurance.
In an unreported opinion, the Appellate Division af-firmed the summary judgment orders, the jury verdict, and the damages award. The appellate panel held that the trial court properly dismissed all claims against Dr. Kaul based on his lack of insurance because N.J.S.A. 45:9-
19.17 does not provide a private cause of action for in-jured patients. The panel based this decision largely on this Court's opinion in Basil, supra, 193 N.J. at 72, 935
A.2d 1154, in which the Court stated that the statutory medical malpractice insurance requirement placed non-compliant physicians on notice only that they may be subject to disciplinary action by the BME. For the same reasons, the panel concluded that [***19] N.J.S.A. 45:9-
19.17(b) does not permit a direct action by a patient against a surgical center that permits an uninsured or underinsured physician to use its facilities.
This Court denied Dr. Kaul's petition for certifica-tion but granted plaintiffs' cross-petition. Jarrell v. Kaul,
216 N.J. 366, 80 A.3d 747 (2013). The Court also admit-ted the New Jersey Association for Justice (NJAJ) to appear as amicus curiae. III.
Plaintiffs urge that the Appellate Division's reliance on Basil was misplaced. They contend that the discussion on which it relied to foreclose a direct cause of [**1027] action against Dr. Kaul due to his lack of medical mal-practice insurance is mere dicta. They also urge this Court to draw a distinction between "mere negligent [*303] failure to maintain malpractice insurance versus gross negligence or intentional concealment, deceit, and lack of informed consent (battery)." They request that the Court reconsider its position in Basil because the Court
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did not consider whether the statute requiring medical malpractice insurance implicitly authorized a direct ac-tion by a patient against an uninsured physician. Plain-tiffs urge that application of the three-prong analysis set forth in In re Resolution of State Commission of Investi-
gation, 108 N.J. 35, 527 A.2d 851 (1987), leads to the conclusion that the Legislature implicitly created a pri-vate right [***20] of action. Therefore, plaintiffs argue that all claims premised on Dr. Kaul's lack of insurance must be reinstated.
Finally, plaintiffs maintain that Howard v. Universi-
ty of Medicine & Dentistry of New Jersey, 172 N.J. 537,
800 A.2d 73 (2002), suggests that an informed consent claim against Dr. Kaul should be permitted. They con-tend that the ability of a physician to compensate a pa-tient in the event of negligence is information that would be material to the reasonably prudent patient selecting a surgeon.
As to MSSC, plaintiffs urge that the Appellate Divi-sion misunderstood their claim against the facility. Plain-tiffs contend that they did not assert a respondeat superi-or or any theory of vicarious liability against MSSC. Rather, they maintain that their claim against MSSC is premised on a duty of the surgical center to ensure that surgeons who perform procedures in its facility are quali-fied to perform those procedures and those qualifications include proper insurance or other suitable financial secu-rity.
Dr. Kaul responds that his lack of insurance does not permit a private right of action by injured patients. He further contends that there is no legal basis to support plaintiffs' theory that lack of insurance vitiates any con-sent to perform a procedure. Furthermore, he claims [***21] that although the policy of insurance excluded spinal surgery, he maintained insurance at the time of the surgery performed on Jarrell and he held sufficient fi-nancial assets at the time to comply with the statute.
[*304] MSSC contends that plaintiffs are attempt-ing to establish a new duty for health care facilities that will expose them to "financial ruin." It argues that N.J.S.A. 45:9-19.17 does not impose on health care facil-ities the duty to enforce the insurance requirement, and the BME has not adopted regulations requiring such ac-tion. It urges that the Appellate Division judgment bar-ring a direct negligence claim against it based on the credentialing process should be affirmed.
Amicus NJAJ asserts that this appeal presents an opportunity for this Court to hold as a matter of law and sound public policy that patients' right to informed con-sent includes the right to know if their physician possess-es insurance that covers the procedure for which consent is sought. Furthermore, every medical facility should be obliged to confirm on a regular basis that the physicians
who have been granted privileges to perform procedures have the minimum amount of insurance coverage re-quired by statute and that the [***22] insurance covers all procedures performed at the facility by the physician. IV.
The Legislature first required physicians to maintain medical malpractice liability insurance in 1998. L. 1997, c. 365. The obligation extended to those physicians who were licensed in this State and [**1028] who treated patients in this State. Id. at § 1. The 1998 legislation also permitted a physician to post a letter of credit if medical malpractice liability insurance was not available. Ibid. In addition, the Legislature delegated to the BME3 the au-thority to establish the minimum amounts per occurrence and per policy year of the required coverage. Ibid. The BME adopted a regulation that required physicians to maintain "insurance in the sum of $1 million per occur-rence and $3 million dollars per policy year." N.J.A.C.
13:35-6.18(a).
3 The BME is the agency responsible for the li-censure and discipline of licensed physicians in this State. N.J.S.A. 45:9-1, -2.
[*305] In 2004, the Legislature amended the stat-ute. The legislation established the minimum amount of medical malpractice liability insurance that a physician must obtain and maintain at $1,000,000 per occurrence and $3,000,000 per policy year. L. 2004, c. 17, § 25. The Legislature also set the minimum [***23] amount of the letter of credit at $500,000 and authorized the BME to require higher amounts for both insurance and the letter of credit. Ibid. It has not done so. See N.J.A.C. 13:35-
6.18 (establishing minimum amounts per occurrence and per policy year at $1,000,000 and $3,000,000 respective-ly and $500,000 for letter of credit).
Codified as N.J.S.A. 45:9-19.17, the statute provides as follows:
a. A physician who maintains a profes-sional medical practice in this State and has responsibility for patient care is re-quired to be covered by medical malprac-tice liability insurance issued by a carrier authorized to write medical malpractice liability insurance policies in this State, in the sum of $1,000,000 per occurrence and $3,000,000 per policy year and unless re-newal coverage includes the premium ret-roactive date, the policy shall provide for extended reporting endorsement coverage for claims made policies, also known as "tail coverage," or, if such liability cover-
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age is not available, by a letter of credit for at least $500,000.
The physician shall notify the State Board of Medical Examiners of the name and address of the insurance carrier or the institution issuing the letter of credit, pur-suant to section 7 of P.L. [***24] 1989, c. 300 ([N.J.S.A.] 45:9-19.7).
b. A physician who is in violation of this section is subject to disciplinary ac-tion and civil penalties pursuant to sec-tions 8, 9 and 12 of P.L. 1978, c. 73 ([N.J.S.A.] 45:1-21 to 22 and 45:1-25).
c. The State Board of Medical Exam-iners may, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 ([N.J.S.A.] 52:14B-1 et seq.), establish by regulation, minimum amounts for medical malpractice liability insurance coverage and lines of credit in excess of those amounts required pursuant to subsection a. of this section.
d. The State Board of Medical Exam-iners shall notify all physicians licensed by the board of the requirements of this section within 30 days of the date of en-actment of P.L. 2004, c. 17.
The statement of the Assembly Health Committee ac-companying the 1998 bill provided that the intent of the bill was "to ensure the citizens of the State that they will have some recourse for adequate compensation in the event that a physician or podiatrist is found responsible for acts of malpractice." Assembly Health Comm., State-
ment to S. 267 (Sept. 19, 1996).
[*306] The BME adopted implementing regula-tions on April 5, 1999, which defined key phrases includ-ing "[m]aintaining [***25] a [**1029] professional practice with responsibility for patient care," "[l]etter of credit," and "[n]ot available." N.J.A.C. 13:35-6.18(a). A "[l]etter of credit" is defined as "a non-assignable, non-transferrable, unexpired, continuous irrevocable obliga-tion, liability bond or other instrument issued by a bank or savings association authorized to do business in this State." Ibid. Coverage is "[n]ot available" when the phy-sician is unable to purchase insurance coverage from a carrier authorized to write it; however, insurance cover-age that is unaffordable is still considered available. Ibid.
A physician who does not have medical malpractice insurance must present to the BME a letter of credit in the amount of $500,000, N.J.A.C. 13:35-6.18(b), and
must promptly notify the BME if a demand for payment on the letter has been made or the continuing viability of the letter has been compromised, N.J.A.C. 13:35-
6.18(d)(1)-(2). The failure of a physician obliged to ob-tain medical malpractice liability insurance or a letter of credit as required by the regulation is considered profes-sional misconduct, N.J.A.C. 13:35-6.18(e), and he or she is subject to discipline in accordance with N.J.S.A. 45:1-
21(e). Such discipline may include revocation or suspen-sion of the physician's license to practice medicine in this State. See N.J.S.A. 45:1-21.
It is against this statutory and regulatory backdrop that we examine the three issues presented in this appeal. V.
We commence our discussion of whether N.J.S.A.
45:9-19.17 bestows on an injured patient a private right of action against a physician who does not obtain or maintain statutorily required medical malpractice insur-ance4 with an examination of [*307] the express lan-guage of the statute and the regulations adopted by the BME implementing this [***26] requirement. As set forth above, the express terms of N.J.S.A. 45:9-19.17 provide that a physician who obtains neither a policy of medical malpractice insurance nor a letter of credit is subject to disciplinary action by the BME and civil pen-alties. The implementing regulations reflect this legisla-tive decision. See N.J.A.C. 13:35-6.18(e). Neither the statute nor the implementing regulations expressly pro-vide that an injured patient has a direct cause of action against a treating physician who does not comply with the statutory financial responsibility provisions.
4 When we refer to the requirement to maintain medical malpractice liability insurance, we in-clude by implication the letter of credit alterna-tive. See N.J.S.A. 45:9-19.17(a).
Both the United States Supreme Court and this Court have held that a statute that does not expressly create a private cause of action may, nonetheless, implic-itly create one. See Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct.
2080, 2088, 45 L. Ed. 2d 26, 36 (1975) (addressing whether statute imposing criminal liability on corpora-tion making political contributions created private right of action); State Comm'n of Investigation, supra, 108
N.J. at 40-41, 527 A.2d 851 (addressing whether subjects of investigation may seek enforcement of confidentiality obligations of investigatory agency). This Court employs a three-prong test that inquires
[1] [***27] whether the plaintiff is "one of the class for whose especial benefit the statute was enacted"; [2] whether there is any evidence that the Legislature intended
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to create a private cause of action under the statute; and [3] whether implication of a private cause of action in this case would be "consistent with the underlying purposes of the legislative scheme."
[**1030] [State Comm'n of Investi-
gation, supra, 108 N.J. at 41, 527 A.2d
851 (citations omitted) (quoting Cort, su-
pra, 422 U.S. at 78, 95 S. Ct. at 2088, 45
L. Ed. 2d at 36).]
Through this inquiry the Court seeks to ascertain the underlying legislative intent. Jalowiecki v. Leuc, 182 N.J.
Super. 22, 30, 440 A.2d 21 (App.Div.1981). When the Legislature has expressly created specific remedies, a court should always hesitate to recognize another unmen-tioned remedy. See Transamerica Mortg. Advisors, Inc.
v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 247, 62 L. Ed.
2d 146, 154-55 (1979). Stated differently, "[i]n the ab-sence of strong indicia of a contrary [legislative] intent, we are compelled to conclude that [the Legislature] pro-vided precisely the [*308] remedies it considered ap-propriate." Middlesex Cnty. Sewerage Auth. v. Nat'l Sea
Clammers Ass'n, 453 U.S. 1, 15, 101 S. Ct. 2615, 2623,
69 L. Ed. 2d 435, 447 (1981).
There is scant legislative history associated with N.J.S.A. 45:9-19.17. The committee statement accompa-nying this legislation simply states that the insurance requirement is designed to ensure a source of some com-pensation in the event of medical negligence. Assembly
Health Comm., Statement to S. 267, supra. Notably, N.J.S.A. 45:9 generally regulates the practice of medicine and further requires physicians [***28] to undertake certain health-related tasks. For example, N.J.S.A. 45:9-
19.11 immunizes members of the BME from liability for actions taken in the course of their administrative obliga-tions, and N.J.S.A. 45:9-22.3b immunizes a physician from liability for failing to distribute a breast cancer in-formation booklet to a patient. These instances suggest that the Legislature was content to entrust oversight of these responsibilities to the BME.
In Basil, supra, this Court noted that N.J.S.A. 45:9-
19.17, when originally adopted in 1998, did not authorize a direct action against an uninsured physician. 193 N.J.
at 71, 72, 935 A.2d 1154. We reached that conclusion in the context of the statutory and regulatory scheme in place at the time the defendant physician examined the plaintiff. Id. at 71-72, 73, 935 A.2d 1154. Notably, until the BME adopted regulations in 1999 to implement the 1998 statute, including a definition of "maintaining a professional practice with responsibility for patient care,"5 it was not abundantly clear that physicians who
simply performed independent medical examinations, such as the defendant physican, were required to main-tain medical malpractice liability insurance. Id. at 71-72,
935 A.2d 1154. Following the adoption of the regula-tions, however, "all practitioners . . . were on notice [***29] that . . . any physician who does not satisfy the insurance requirement would be incompetent to practice his profession." Id. at 72, 935 A.2d 1154. Here, at the [*309] time Dr. Kaul treated plaintiff, there was no question that he was required to maintain liability insur-ance.
5 N.J.A.C. 13:35-6.18.
Applying the three-part test adopted by this Court in State Commission of Investigation, we determine that N.J.S.A. 45:9-19.17 does not create, expressly or implic-itly, a direct cause of action by a patient against a non-compliant treating physician. To be sure, a patient, such as Jarrell, may receive a direct benefit by virtue of the availability of insurance to provide a source of funds to recompense for negligent care. On the other hand, there is no evidence that the Legislature contemplated that enforcement of its determination--that physicians provid-ing medical care in this State must be insured--would be advanced [**1031] by bestowing a direct cause of ac-tion on an injured patient. To the contrary, the Legisla-ture expressly concluded that the administrative agency charged with regulating the licensure and discipline of physicians--the BME--would be the most likely vehicle to ensure compliance with the liability insurance re-quirement.
It [***30] is difficult to quarrel with this approach. A physician is prohibited from providing medical care in New Jersey without a license, and the BME will not is-sue a license unless a physician establishes financial re-sponsibility. Noncompliance is considered professional misconduct and the BME has the authority to suspend or revoke a license to practice medicine of a noncompliant physician. Administrative oversight and enforcement is the declared enforcement mechanism and that choice reflects a legislative decision to encourage and force compliance rather than wait for a complaint by an injured patient that may never be filed.
The underlying purpose of the legislation is predom-inately proactive. The legislative intent is to create a source of compensation for a patient injured by negligent medical care. A post-injury direct claim against a non-compliant and negligent physician is reactive and does little to further the articulated goal.
We therefore conclude that N.J.S.A. 45:9-19.17 does not expressly, and cannot be read to implicitly, recognize a direct cause of action by an injured patient against a physician who fails to [*310] obtain the statutorily re-
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quired medical malpractice liability insurance or letter [***31] of credit. The Appellate Division judgment that rejected such a cause of action is affirmed. VI.
In Count Eight of the amended complaint, plaintiffs allege that Dr. Kaul knew that he was uninsured at the time that he obtained Jarrell's consent to perform surgery. Jarrell alleged that Dr. Kaul's uninsured status "would have been significant in [his] decision-making." Plain-tiffs asserted that the failure to disclose this information constitutes "deceit, misrepresentation and outrageous conduct."
Before the trial court and on appeal, plaintiffs ar-gued that the claims asserted in the amended complaint, as they pertained to Dr. Kaul's lack of insurance, impli-cated the doctrine of informed consent.6 All of the claims asserted by plaintiffs against Dr. Kaul, other than the medical malpractice claim asserted in Count One, were construed as direct claims under the statute cast in vari-ous guises against Dr. Kaul based on his lack of financial responsibility. As a result, neither the trial court nor the appellate panel considered whether the absence of statu-torily required medical malpractice liability insurance may be information that a reasonably prudent patient would consider material to his or [***32] her decision to proceed with a course of medical treatment or surgical procedure.
6 In Count Two, plaintiffs alleged that Dr. Kaul misrepresented his professional training and ex-perience.
Plaintiffs argue that the existence, or absence, of medical malpractice insurance is as important a piece of information as are the risks attendant to the medical treatment recommended by a physician. They insist that a discussion of the nature and risks of the treatment and the risks associated with failing to pursue a particular course of treatment is incomplete and any decision to pursue or reject a certain course of treatment cannot be considered [*311] [**1032] informed if the physician fails to advise the patient that he does not possess the statutorily required medical malpractice insurance. Dr. Kaul responds that a physician's duty to obtain informed consent from a patient prior to undertaking medical treatment is limited to the risks associated with the treatment, not whether a patient may have a source to pay a monetary judgment in the event the physician neg-ligently discharges his professional duties.
In Largey v. Rothman, 110 N.J. 204, 540 A.2d 504
(1988), the Court observed that the origins of the duty of a physician to obtain a patient's consent to a medical [***33] procedure can be traced to the eighteenth centu-
ry. Id. at 207, 540 A.2d 504 (citing Slater v. Baker &
Stapleton (1767), 95 Eng. Rep. 860 (K.B.)). In In re
Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), this Court stated that "'[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an oper-ation without his patient's consent commits an assault for which he is liable in damages.'" Id. at 346, 486 A.2d
1209 (quoting Schloendorff v. Soc'y of N.Y. Hosp., 211
N.Y. 125, 105 N.E. 92, 93 (1914)).
Informed consent is
essentially a negligence concept, predi-cated on the duty of a physician to dis-close to a patient such information as will enable the patient to make an evaluation of the nature of the treatment and of any attendant substantial risks, as well as of available options in the form of alterna-tive therapies.
[Largey, supra, 110 N.J. at 208, 540
A.2d 504.] If a physician withholds facts that are necessary to form the basis of an intelligent consent to proposed treatment, the physician has not discharged his duty to the patient. Ibid.; see Salgo v. Leland Stanford, Jr. Univ. Bd. of Trs.,
154 Cal. App. 2d 560, 317 P.2d 170, 181 (1957). The duty extends to the need to provide information to a pa-tient not only about risks attendant to the proposed treatment but also to alternative treatments or therapies and the risks of pursuing no treatment at all. Matthies v.
Mastromonaco, 160 N.J. 26, 38, 733 A.2d 456 (1999).
[*312] Largey, supra, adopted the "prudent pa-tient" or "materiality of risk" standard. 110 N.J. at 213,
540 A.2d 504. The Court [***34] recognized that "[t]he foundation for the physician's duty to disclose in the first place is found in the idea that 'it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie.'" Id. at 214,
540 A.2d 504 (quoting Canterbury v. Spence, 464 F.2d
772, 781, 150 U.S. App. D.C. 263 (D.C.Cir.), cert. de-
nied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518
(1972)). Thus, this Court acknowledged a physician's duty to "'warn of the dangers lurking in the proposed treatment' and to 'impart information [that] the patient has every right to expect,' as well as a duty of 'reasonable disclosure of the choices with respect to proposed thera-py and the dangers inherently and potentially involved.'" Id. at 211, 540 A.2d 504 (alteration in original) (quoting Canterbury, supra, 464 F.2d at 782). The Court stated that
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the scope of the duty to disclose "must be measured by the patient's need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be di-vulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked. And to safe-guard the patient's interest in achieving his own determination on treatment, the law must itself set the standard for ade-quate disclosure."
[**1033] [Ibid. (quoting Canter-
bury, supra, 464 F.2d at 786-87).]
The breadth of the duty to disclose risks is [***35] measured by a standard that is not personal to the physi-cian or to the patient. Rather, it is an objective standard "'with due regard for the patient's informational needs and with suitable leeway for the physician's situation.'" Ibid. (quoting Canterbury, supra, 464 F.2d at 787). A risk is "material" if the reasonable patient "would be 'likely to attach significance to the risk or cluster of risks' in deciding whether to forego the proposed therapy or to submit to it." Id. at 211-12, 540 A.2d 504 (quoting Can-
terbury, supra, 464 F.2d at 787).
Thus, the Largey Court reversed the verdict in favor of a physician, where the trial court instructed the jury to evaluate the plaintiff's informed consent claim in accord-ance with the prevailing "reasonable physician" standard. Id. at 205, 216, 540 A.2d 504. In the course of deciding that the plaintiff's informed consent [*313] claim should be evaluated in accordance with the prudent patient standard, the Court stated that
"[t]he topics importantly demanding a communication of information are the in-herent and potential hazards of the pro-posed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated. The factors contributing significance to the danger-ousness of a medical technique are, of course, the incidence of injury and [***36] the degree of harm threatened."
[Id. at 213, 540 A.2d 504 (alteration in original) (quoting Canterbury, supra,
464 F.2d at 787-88).]
In Matthies, supra, the Court emphasized that a phy-sician is required to explain the risks associated with all
medically reasonable alternatives, including invasive and noninvasive treatments. 160 N.J. at 34, 733 A.2d 456. In that case, an eighty-one-year-old, partially paralyzed woman living independently fell and fractured her hip. Id. at 29-30, 733 A.2d 456. Without consulting the pa-tient or her family, her physician unilaterally decided not to surgically repair her fractured hip and placed her on bed rest. Id. at 31, 733 A.2d 456. The Court emphasized that "the decisive factor [in any informed consent analy-sis] is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately pre-sents the material facts so that the patient can make an informed decision." Id. at 36, 733 A.2d 456. Dismissing the contention that the plaintiff's position would require a physician to provide a detailed explanation of every treatment option, the Court emphasized that "[t]he stand-ard obligates the physician to disclose only that infor-mation material to a reasonable patient's informed deci-sion." Ibid. (citing Largey, supra, 110 N.J. at 211-12,
540 A.2d 504). Because the physician impermissibly arrogated to himself the decision concerning [***37] which treatment alternative would be pursued, the Court remanded the matter for a new trial. Id. at 34, 41, 733
A.2d 456.
The validity of the consent obtained from a patient normally is confined to a disclosure of the risks associat-ed with the recommended procedure and alternative pro-cedures or therapies. The Court has recognized, however, that in certain circumstances consent may be vitiated if the physician made significant misrepresentations of his credentials or experience. In Howard, supra, a [*314] neurologist disclosed to the plaintiff the significant risks, including paralysis, of the surgery proposed to address a large cervical disc herniation. 172 N.J. at 543, 800 A.2d
73. The plaintiff [**1034] claimed that the defendant physician informed him that he was a board certified physician and in each of the prior eleven years had per-formed sixty procedures similar to the procedure he pro-posed to perform on the plaintiff. Ibid. Following the surgery, which left the plaintiff a quadriplegic, the plain-tiff learned that the defendant neurologist was not board certified and had performed the procedure no more than twenty-five times. Id. at 544, 800 A.2d 73.
The Court acknowledged in Howard that a misrep-resentation about a physician's credentials or experience is "not a perfect [***38] fit" with the prevailing doctrine of informed consent. Id. at 557, 800 A.2d 73. Neverthe-less, the Court determined that "the possibility of materi-ality is present" when the physician makes significant misrepresentations about his credentials and experience when discussing the risks associated with the proposed surgical procedure, and those misrepresentations may undermine the validity of the consent obtained from the patient. Id. at 558, 800 A.2d 73. The Court stated that
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[i]n certain circumstances, a serious misrepresentation concerning the quality or extent of a physician's professional ex-perience, viewed from the perspective of the reasonably prudent patient assessing the risks attendant to a medical procedure, can be material to the grant of intelligent and informed consent to the procedure.
[Id. at 555, 800 A.2d 73 (citing 1 Dan B. Dobbs, The Law of Torts, § 251 at 660-61 (2001)).]
Thus, to succeed on an informed consent claim based on misrepresented credentials and experience, the plaintiff in Howard also was required to show that the additional risk posed by the physician's actual credentials and experience increased the plaintiff's risk of paralysis from the procedure. Id. at 558, 800 A.2d 73. That demonstration is guided by two inquiries: first, "whether the more [***39] limited experience or credentials pos-sessed by defendant [physician] could have substantially increased plaintiff's risk of paralysis," ibid., and second, "whether that substantially increased [*315] risk would cause a reasonably prudent person not to consent to un-dergo the procedure," ibid.
Requiring a physician to disclose whether he main-tains medical malpractice liability insurance, the amount of the coverage, and any restrictions, reservations, or limitations of the insurance coverage, or whether a phy-sician has posted a letter of credit with the BME is also "not a perfect fit" with our informed consent jurispru-dence.
We recognize that the existence or not of medical malpractice liability insurance or the permissible letter of credit may be material information for some patients. To encourage compliance and to enforce the legislative mandate, the BME has adopted regulations that declare that the failure to obtain and maintain medical malprac-tice liability insurance constitutes professional miscon-duct. N.J.A.C. 13:35-6.18(e). In addition, a physician's failure to have the required coverage subjects him or her to discipline in accordance with N.J.S.A. 45:9-19.17(b), which may include revocation or suspension of the [***40] physician's license to practice medicine in this State. See N.J.S.A. 45:1-21.
Declaring that failure to comply with the statutory requirement to maintain liability insurance is an act of professional misconduct, which subjects a physician to substantial discipline by the BME, and recognizing that some patients would consider the existence or not of such insurance material information do not lead inexora-
bly to the conclusion that noncompliance with the statu-tory mandate should give rise to an [**1035] informed consent claim. As explained in Largey, supra, informed consent is predicated on the duty of the physician to dis-close to the patient the information that will enable the patient to make a reasoned evaluation of the nature of the proposed treatment, any risks associated with it, and those risks associated with any alternative treatments. 110 N.J. at 208, 540 A.2d 504. Yet, there may be many reasons that explain a physician's lack of liability insur-ance and some of those reasons do not necessarily mean that the physician is unskilled to perform the [*316] proposed procedure or to administer the proposed treat-ment.7 In such circumstances, the absence of insurance bears no relation to the nature of the proposed medical course or to the [***41] risks attendant to a proposed procedure or treatment.
7 We readily acknowledge in Howard, supra, that even exaggerating one's credentials was "not a perfect fit" with our informed consent jurispru-dence. 172 N.J. at 557, 800 A.2d 73. Neverthe-less, we permitted a plaintiff to proceed with such a claim if he could establish that the actual expe-rience of the physician "could have substantially increased plaintiff's risk of paralysis" and that a patient facing that increased risk would not con-sent to the procedure. Id. at 558, 800 A.2d 73.
To be sure, a patient who has been injured due to negligent care by an uninsured physician has sustained a financial loss, but such a loss is not the injury that the informed consent doctrine ever contemplated. Applying the informed consent jurisprudence to the financial con-sequences of negligent care by an uninsured physician untethers the remedy from its theoretical underpinnings and is a stark departure from our prior jurisprudence. We discern no principled reason to extend the additional and questionable relief that the informed consent doctrine may provide to an injured patient to address the financial insecurity of a physician. VII.
Plaintiffs also asserted a negligence claim against MSSC based on [***42] its action permitting Dr. Kaul to perform a medical procedure for which he was unin-sured at its facility. Plaintiffs do not seek to hold MSSC vicariously liable for Dr. Kaul's negligent treatment. Ra-ther, they contend that MSSC owed a duty to them and others to limit use of its facility only to those who satisfy the statutory mandate to obtain and maintain the mini-mum level of medical malpractice liability insurance. In essence, plaintiffs asserted a claim of negligent hiring against MSSC.
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Generally, a person who engages an independent contractor is not liable for the negligence of that contrac-tor. Majestic Realty Assocs. v. Toti Contracting Co., 30
N.J. 425, 430-31, 153 [*317] A.2d 321 (1959). An indi-vidual will be held liable if he or she: (1) retains control of the manner and means by which the work will be per-formed; (2) retains an incompetent contractor; or (3) re-tains an independent contractor to perform work that constitutes a nuisance per se. Ibid. Plaintiffs urge that a surgical center that grants privileges to a physician to perform a procedure for which he is uninsured invokes the second exception because it permitted an incompe-tent physician to use its facility.
The incompetent contractor exception is founded on the premise that
[a]n employer is subject to liability for [***43] physical harm to third persons caused by his failure to exercise reasona-ble care to employ a competent and care-ful contractor
(a) to do work which will involve the risk of physical harm unless it is skillfully and carefully done, or
[**1036] (b) to perform any duty which the employer owes to third persons.
[Restatement (Second) of Torts § 411 (1965).]
A competent and careful contractor is "a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable [person] would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others." Id. at cmt. (a). Any liability for fail-ing to engage a competent contractor is limited "to the physical harm as is so caused." Id. at cmt. (b). In order for the employer to be liable, "that harm shall result from some quality in the contractor which made it negligent for the employer to entrust the work to him." Ibid.
Efforts to invoke the second Majestic exception to the ordinary rule that a principal is not liable for the neg-ligent acts of an independent contractor have often arisen in the context of a tradesman, such as a paver, a tree sur-geon, or a carpenter, [***44] who was employed to per-form a certain task and is later determined to be insol-vent. See Mavrikidis v. Petullo, 153 N.J. 117, 137-38,
707 A.2d 977 (1998) (rejecting contention that efforts to minimize cost and use of uninspected truck constitutes incompetence); Cassano v. Aschoff, 226 N.J. Super. 110,
112, 116, 543 A.2d 973 (App.Div.) (rejecting contention that insolvency of tree surgeon constitutes [*318] indi-
cia of incompetence), certif. denied, 113 N.J. 371, 550
A.2d 476 (1988); Miltz v. Borroughs-Shelving, 203 N.J.
Super. 451, 466, 497 A.2d 516 (App.Div.1985) (confirm-ing that financial responsibility is not reliable indicia of incompetence of carpenter). In those cases, lack of finan-cial responsibility, including the absence of insurance, was not considered as indicia of a lack of skill or incom-petence. Such dispositions are consistent with comment (g) to § 411 of the Restatement, which provides that § 411 "has no application where the contractor, although competent and careful, is financially irresponsible."
Mavrikidis illustrates this rule and comment. In Mavrikidis, a trucking firm retained by a gasoline station operator to pave the surface of the station used a grossly overloaded truck with faulty brakes to haul hot asphalt to the gas station. 153 N.J. at 124-25, 128, 707 A.2d 977. Unable to stop due to the faulty brakes, the truck drove through a red light, struck the plaintiff's car, hit a tele-phone pole and overturned, spilling hot asphalt onto the plaintiff's car. Id. at 125, 707 A.2d 977. The Court re-fused [***45] to recognize a cause of action for negli-gent hiring of the asphalt hauler because the evidence presented at trial demonstrated that the retained contrac-tor was a skilled and experienced paving contractor and there was no evidence that the gas station operator knew or had reason to know that the vehicle used to carry the asphalt was unsafe. Id. at 141-42, 707 A.2d 977. In a dissenting opinion, Justice Stein asserted that the majori-ty viewed the Majestic incompetent contractor exception too narrowly. Id. at 152, 707 A.2d 977 (Stein, J., dissent-ing). The dissent also found substantial evidence to sup-port the jury's finding that the gas station operator negli-gently hired a contractor to pave and transport hot as-phalt because it could set off the paving cost against a debt owed to it by the contractor, and it knew that the contractor operated uninspected trucks in a state of dis-repair. Id. at 154-58, 707 A.2d 977.
In Puckrein v. ATI Transport, Inc., 186 N.J. 563,
579-80, 897 A.2d 1034 (2006), the Court addressed the Majestic negligent [*319] hiring exception in the con-text of retaining independent contractors to perform tasks in a highly regulated industry. We recognized a cause of action against a principal [**1037] engaged in the col-lection and disposal of solid waste and recyclable mate-rials, who retained a trucking company to haul the waste [***46] to various out-of-state waste disposal facilities. The principal demonstrated little or no regard for the qualifications of the drivers or the conditions of the vehi-cles used to transport the materials. The contract between the business and the trucking firm retained by it required the trucking firm to comply with all applicable city, state, and federal requirements, and the trucking firm agreed to maintain required insurance and to indemnify the busi-
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ness that retained its services. Id. at 569-70, 897 A.2d
1034.
Discovery revealed that equipment bearing markings other than the retained trucking firm occasionally ap-peared at the facility to collect solid waste and recyclable materials. Id. at 571, 897 A.2d 1034. The transportation manager for the principal believed "they were the same company." Ibid. Moreover, the transportation manager conceded that he never checked to determine if the trucks that appeared at his facility had passed inspection or held the requisite registration, insurance, licenses, or permits. Ibid.
The incident that formed the basis for the plaintiff's complaint in Puckrein occurred when the driver of a trac-tor-trailer drove through a red light and struck an auto-mobile with three occupants. Id. at 568, 897 A.2d 1034. Two of the occupants [***47] died; a third occupant was seriously injured. Ibid. At the time of the accident, the tractor-trailer contained tons of glass residue. Ibid. The vehicle also had faulty brakes and the liability insur-ance had lapsed. Id. at 568, 570, 897 A.2d 1034.
Relying on basic negligence principles and § 411 of the Restatement, the Court recognized a duty of an em-ployer "to exercise reasonable care to employ a compe-tent and careful contractor" to perform work that in-volves a risk of physical harm unless it is done with skill. Id. at 575, 897 A.2d 1034. The Court concluded that
[*320] to prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the princi-pal knew or should have known of the in-competence.
[Id. at 576, 897 A.2d 1034 (citing Mavrikidis, supra, 153 N.J. at 136-37,
707 A.2d 977).] In so holding, the Court addressed the contrary result reached in Mavrikidis.
The Puckrein Court did not view its earlier opinion in Mavrikidis as the final word on the Majestic incompe-tent contractor exception; instead, the Court viewed the disposition in Mavrikidis as
a difference of opinion over whether to consider that contract narrowly as a pav-ing contract, [***48] or more broadly as including pre-and post-paving activities.
Although that issue may be debatable, what is not debatable is that the tipping point between the majority and the dissent in Mavrikidis was not a disagreement over the basic legal principles to which we have adverted. That is the backdrop for our inquiry.
[Id. at 577, 897 A.2d 1034.]
Ultimately, the Puckrein Court determined that summary judgment had been improperly granted in favor of the business that had retained the wastehauler. Id. at
580, 897 A.2d 1034. The Court noted that the tractor-trailer operator hauling the glass had been retained to perform the very task that was the subject of the contract between the business and the wastehauler. Id. at 578, 897
A.2d 1034. Any driver performing those tasks [**1038] had to have a valid driver's license, the vehicle had to be registered and inspected, and the owner/operator of the vehicle had to maintain liability insurance. Ibid. As such, the Court concluded that
the core question here is not whether [the retained trucker] was competent to transport [the business's] loads upon the public highways--it was not. The question is whether [the business] violated its duty to use reasonable care in selecting a trucker and whether it knew or should have known [***49] of [the retained trucker's] incompetence.
[Id. at 579, 897 A.2d 1034.] A later case rephrased the essential question as whether the principal that engaged an independent contractor inquired "into an independent contractor's essential com-petency." Fox v. Millman, 210 N.J. 401, 427, 45 A.3d
332 (2012).
[*321] A year following this Court's decision in Puckrein, the Court restated the circumstances that would permit a person to prevail on a claim against a principal who retained an incompetent or unskilled con-tractor. Basil, supra, 193 N.J. at 68, 935 A.2d 1154. In Basil, this Court addressed a negligent hiring claim brought against a workers' compensation carrier that re-tained an uninsured physician to examine and treat per-sons who sustained workplace injuries. Id. at 43-45, 935
A.2d 1154. The physician was not obliged to have medi-cal malpractice liability insurance as a condition of his license to practice medicine in this State at the time the insurance carrier retained the defendant physician or at
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the time he performed the medical examinations of the plaintiff. Id. at 72, 935 A.2d 1154. Accordingly, the Court concluded that the physician could not be consid-ered an incompetent contractor. Id. at 72-73, 935 A.2d
1154.
The Court proceeded, however, to emphasize that the current state of the law requiring medical malpractice liability insurance as a condition of licensure imposed [***50] a continuing responsibility on an insurer that retains physicians to treat or examine injured workers to ensure that the retained physician is qualified to practice. Id. at 73, 935 A.2d 1154. The Court stated:
State regulations now clearly require practicing physicians maintaining a pro-fessional office . . . to obtain a minimum amount of medical malpractice insurance as a condition for licensure. An IME con-tract physician who lacked malpractice in-surance after . . . (the effective date of [N.J.A.C. 13:35-6.18(a)]), is unqualified to practice medicine. Consistent with our 2006 holding in Puckrein, supra, an in-surance company that engages an IME physician for evaluative purposes now must be aware that it is under a continuing duty of inquiry in respect of malpractice insurance requirements in order to ensure that the physicians it engages are qualified to practice.
[Ibid. (internal citation omitted).]
In sum, Puckrein establishes that, when a business retains a contractor to perform a task that requires special skill and specific permits or licenses, its retention of a contractor without those necessary credentials subjects the business to liability for hiring an incompetent con-tractor. Similarly, Basil counsels that granting [***51] privileges to a physician without the appropriate creden-tials [*322] also exposes the health care facility to lia-bility for hiring an incompetent contractor.
The provision of medical care is highly regulated in this State. Hospitals and the wide variety of alternative providers of health care services, including ambulatory care centers and surgical centers, are highly regulated. See, e.g., N.J.A.C. 8:43G-1.1 to -7A.10 (establishing hospital [**1039] licensing standards); N.J.A.C. 8:43A-
1.1 to -33.4 (promulgating manual of standards for li-censing ambulatory care centers). No health care facility may provide medical care unless it obtains a license, N.J.S.A. 26:21-1 to -12(a), and that license is subject to renewal on an annual basis, N.J.A.C. 8:43E-5.3(c). Each
set of regulations governing each type of health care fa-cility recognizes that the health care administered in a facility is provided by employees, such as nurses and technicians, and independent contractors, such as physi-cians. Health care facilities are given broad responsibility to select the professionals who will provide medical care; however, regulations address the manner in which the medical staff shall be organized, the staff policies and procedures that should be addressed, and medical staff qualifications. N.J.A.C. [***52] 8:43G-16.1 to -17.1. The governing authority of each facility is required to establish criteria for delineating the privileges that will be granted, granting privileges to provide medical care in its facility in accordance with the adopted standards and procedures, and reviewing the granted privileges on a periodic basis. N.J.A.C. 8:43A-4.1, -7.2 to -7.4. Physi-cians must submit an application to obtain privileges and must demonstrate that they are currently licensed to prac-tice medicine in this State. See N.J.A.C. 8:43A-1.21, -3.5, and -12.3(a) (requiring provision of surgical privileges at ambulatory health centers to currently licensed physi-cians); N.J.A.C. 8:43G-16.3(a) (requiring all physicians with clinical privileges at hospitals to be licensed to prac-tice medicine by BME). Obtaining and maintaining med-ical malpractice liability insurance in the amounts pre-scribed by law is a requirement to obtain and maintain a license to practice medicine in New Jersey. N.J.S.A.
45:9-19.17; N.J.A.C. 13:35-6.18(b).
[*323] In the context of plaintiffs' negligent hiring claim against MSSC, the basic element of competency for any physician seeking surgical privileges at MSSC's facility is possession of a license to practice medicine in the State of New Jersey. An essential condition for such [***53] a license is possession of a policy of medical malpractice liability insurance or an acceptable letter of credit as required by statute and the regulations adopted by the BME. Moreover, the statutory financial responsi-bility requirements impose a continuing obligation on the physician to maintain the appropriate type and amount of insurance.
As recognized in Puckrein and Basil, when the task that a principal retains an independent contractor to per-form requires specific qualifications, such as possession of certain permits and licenses, the principal has an ini-tial duty to ascertain that the contractor possesses the requisite license and a continuing duty to assure that the requisite license is maintained. Here, MSSC had a duty to withhold privileges to any physician who did not meet the financial responsibility requirements for a license to practice medicine in this State. To be sure, the Legisla-ture delegated the authority to enforce the liability insur-ance requirement to the BME. The record before the trial court, however, demonstrates that MSSC knew that Dr. Kaul possessed an insurance policy that expressly ex-
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cluded the procedure performed on plaintiff. The record also reveals that [***54] Dr. Kaul asserted that he ad-vised the BME and MSSC that he possessed sufficient assets to satisfy the alternative letter of credit require-ment. Yet, a simple representation that a physician pos-sesses sufficient assets does not satisfy the regulatory definition of a letter of credit. See N.J.A.C. 13:35-
6.18(a). More importantly, the record is barren of any evidence that the BME accepted this bare representation of financial responsibility [**1040] or that MSSC con-ducted any inquiry to confirm that the BME deemed such a representation as compliance with the statutory insur-ance requirement. In short, based on this record, the trial court erred in granting summary judgment in favor of MSSC.
[*324] A negligent hiring cause of action is not a strict liability claim. To the contrary, it is founded on basic negligence principles. Thus, a plaintiff who asserts such a claim against a health care facility must do more than prove that the facility granted privileges to a physi-cian without the statutorily required medical malpractice liability insurance or letter of credit.
Here, having misconstrued the nature of plaintiffs' claim against MSSC, the trial court dismissed the negli-gent hiring claim. As noted in this opinion, there [***55] are several open questions about whether Dr. Kaul com-plied with the alternative letter of credit requirement. As described by Dr. Kaul, his bare assertion of adequate financial assets to respond to a negligence claim does not comply with the BME definition of a letter of credit. N.J.A.C. 13:35-6.18(a). Moreover, Dr. Kaul asserts ei-ther he or MSSC personnel discussed the sufficiency of his purported letter of credit with BME personnel. Dis-covery is required to clarify this and other issues integral to this claim. We therefore reverse the summary judg-ment entered in favor of MSSC in the negligent hiring claim asserted by plaintiffs. VIII.
In summary, we conclude that N.J.S.A. 45:9-19.17 does not create a direct action by an injured patient against a physician who does not possess medical mal-practice liability insurance or a suitable letter of credit. Moreover, failure to comply with the statutory liability insurance mandate does not give rise to an informed con-sent claim. The inability to recover a judgment is not the injury contemplated by the informed consent doctrine.
Finally, we hold that a cause of action for negligent hiring may be asserted against a health care facility that grants privileges to a physician [***56] who has not complied with the statutorily required insurance. A health care facility that grants privileges to physicians to use its facility has a continuing duty to ensure that any
physician granted privileges maintains the required in-surance, [*325] which is a condition of obtaining and maintaining a license to practice medicine in this State. IX.
The judgment of the Appellate Division is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.
JUSTICES LaVECCHIA, PATTERSON, FER-NANDEZ-VINA, and SOLOMON join in JUDGE CUFF's opinion. JUSTICE ALBIN filed a separate opin-ion dissenting in part and concurring in part, in which CHIEF JUSTICE RABNER joins. CONCUR BY: ALBIN DISSENT BY: ALBIN DISSENT
JUSTICE ALBIN, dissenting and concurring.
The facts here present the quintessential case of lack of informed consent. Dr. Kaul did not have the medical malpractice insurance required by law to perform the invasive surgical procedure on his patient, plaintiff James Jarrell. Performing the procedure without the req-uisite insurance constituted professional misconduct. Yet, Dr. Kaul never explained any of this to his patient, presumably because plaintiff never would have agreed to the procedure [***57] had he been fully informed.
Dr. Kaul failed to disclose material facts to his pa-tient. He denied plaintiff the right to decide whether a financially incompetent--or worse yet, a professionally incompetent--physician should perform invasive surgery on him. Dr. Kaul was credentialed only as an anesthesi-ologist; he was not insured to perform spinal surgery.
[**1041] A logical extension of our informed-consent jurisprudence would permit a cause of action if a plaintiff can establish four elements: (1) the physician was uninsured to perform the medical procedure, (2) the physician failed to inform the patient that he was unin-sured, (3) the patient would not have undergone the pro-cedure if properly informed, and (4) the plaintiff can prove damages. The majority, however, is not willing to take this natural step in the development of our common law.
A cause of action for lack of informed consent would recognize that a physician cannot hide material facts and that the patient has a right to make critical choices concerning his health. No [*326] reasonable patient would consent to spinal surgery knowing that his physician lacks malpractice insurance to perform that procedure. Because the majority is unwilling [***58] to
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find that Dr. Kaul breached a common-law duty by fail-ing to disclose to the patient his lack of insurance to per-form spinal surgery, I respectfully dissent. I concur in the remainder of the Court's opinion. I.
A physician is statutorily required to maintain medi-cal malpractice liability insurance. N.J.S.A. 45:9-19.17. The purpose of the law is "to ensure the citizens of the State that they will have some recourse for adequate compensation in the event that a physician or podiatrist is found responsible for acts of malpractice." Assembly
Health Comm., Statement to S. 267 (Sept. 19, 1996). A physician who does not maintain medical malpractice liability insurance for a procedure he performs is subject to discipline for professional misconduct--discipline that includes possible revocation or suspension of his license to practice medicine. See N.J.S.A. 45:1-21; N.J.A.C.
13:35-6.18(e). The public therefore presumes that a phy-sician is insured to perform a surgical procedure.
Physicians are obligated to provide information that is material to a reasonable patient's ability to make an informed decision about whether to proceed with a course of treatment or procedure. Matthies v.
Mastromonaco, 160 N.J. 26, 36, 733 A.2d 456 (1999). The doctrine of informed consent finds its source in [***59] the concept of negligence. Largey v. Rothman,
110 N.J. 204, 208, 540 A.2d 504 (1988). In an informed-consent analysis, the dominant issue is "whether the phy-sician adequately presents the material facts so that the patient can make an informed decision." Matthies, supra,
160 N.J. at 36, 733 A.2d 456. A "'physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.'" Largey, supra, 110 N.J. at 208, 540 A.2d 504 (quoting Salgo v. Leland Stanford, Jr. Univ. Bd. of Trus-
tees, 154 Cal. App. 2d 560, 317 P.2d [*327] 170, 181
(Cal.Dist.Ct.App.1957)); see also In re Conroy, 98 N.J.
321, 346, 486 A.2d 1209 (1985) (explaining that under informed-consent doctrine, "no medical procedure may be performed without a patient's consent, obtained after explanation of the nature of the treatment, substantial risks, and alternative therapies" (internal quotation marks
omitted)). The informed-consent doctrine is about patient autonomy--the right of the patient to make decisions that intimately and materially concern his health and life. Rothman, supra, 110 N.J. at 209, 540 A.2d 504; see also
Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J.
537, 557, 800 A.2d 73 (2002) (recognizing informed-consent claim when objectively reasonable patient would not consent to procedure if physician's inexperience had been known to patient). The physician [**1042] cannot arrogate to himself decisions that vitally concern the pa-tient's health.
A patient has a right to know whether a physician performing a procedure is in [***60] a financially re-sponsible position in the event that the patient suffers injuries due to medical malpractice. A reasonable patient would consider a physician's lack of insurance a material factor in making a decision whether to have spinal sur-gery. That is so because an uninsured physician provides no financial safety net for a patient who is harmed by the physician. Lack of insurance also may suggest that the carrier considered the physician incompetent to perform the procedure.
If the physician does not tell the patient that he is not lawfully permitted to perform the uninsured medical procedure, then the patient should be able to file a cause of action for lack of informed consent, provided he would not have undergone the procedure had he been properly informed and he can prove damages. II.
The goals of tort law are to deter persons from en-gaging in unreasonable conduct and to compensate vic-tims for the damage done to them by tortfeasors. The application of the common law to this claim of lack of informed consent would have been an [*328] unre-markable extension of our jurisprudence. It is remarkable that a patient has no cause of action against a physician who performs a surgical procedure [***61] under the false pretense that he is insured.
For those reasons, I respectfully dissent in part and concur in part.
216
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MARY T. KLEINE, Plaintiff-Appellant, v.
EMERITUS AT EMERSON, BREA EMERSON, LLC d/b/a EMERITUS AT EMERSON, and EMERITUS CORPORATION, Defendants, and CARE ONE AT VAL-LEY, CARE ONE, LLC, MILLENNIUM HEALTH CARE CENTERS II, d/b/a CARE
ONE AT VALLEY, DES HOLDING CO., INC. and DES-C 2009 GRAT, Defendants-Respondents.
DOCKET NO. A-4453-14T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
445 N.J. Super. 545; 139 A.3d 148; 2016 N.J. Super. LEXIS 80
March 15, 2016, Argued
June 9, 2016, Decided SUBSEQUENT HISTORY: [***1] Approved for Publication June 9, 2016. PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-409-13. COUNSEL: Thomas S. Howard argued the cause for appellant (Gartenberg Howard, LLP, attorneys; Mr.
Howard and Peter A. Tabisz, on the briefs). Shane P. Simon argued the cause for respondents (Bu-
chanan Ingersoll & Rooney, P.C., attorneys; David L.
Gordon, Eric D. Heicklen and Mr. Simon, of counsel and on the brief). JUDGES: Before Judges FISHER, ROTHSTADT and CURRIER. The opinion of the court was delivered by FISHER, P.J.A.D. OPINION BY: FISHER OPINION
[*547] [**148] The opinion of the court was de-livered by
FISHER, P.J.A.D.
Plaintiff commenced this personal injury action against, among others, defendant [**149] Care One at Valley,1 which operates a nursing facility that moved to compel arbitration of plaintiff's claims based on a clause contained in plaintiff's admission agreement. Defendant apparently imposes on its patients an obligation to arbi-trate disputes because it can. The Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, which the Supreme Court of the United States broadly construes in favor of arbitra-tion, overrides all state policies and concerns, including the Nursing Home Act's2 express prohibition against the enforcement of such agreements, [***2] N.J.S.A. 30:13-
8.1.3See Marmet Health Care Ctr., Inc. v. Brown, 565
U.S. , , 132 S. Ct. 1201, 1203, 182 L. Ed. 2d 42, 45
(2012) (holding that West Virginia's similar nursing home statute, which prohibits arbitration of personal in-jury and wrongful death suits, takes a backseat to the FAA and the federal policy in favor of arbitration); see
also Estate of Ruszala v. Brookdale Living [*548] Communities, Inc., 415 N.J. Super. 272, 292-93, 1 A.3d
806 (App. Div. 2010).4
1 Plaintiff actually named a number of defend-ants as being responsible for this aspect of her personal injury claims, namely: defendants Care One, LLC, Millennium Health Care Centers II, d/b/a Care One at Valley, DES Holding Co., Inc., and DES-C 2009 GRAT (collectively, defend-ant).
217
Page 2 445 N.J. Super. 545, *; 139 A.3d 148, **;
2016 N.J. Super. LEXIS 80, ***
2 N.J.S.A. 30:13-1 to -17. 3 N.J.S.A. 30:13-8.1 declares that "[a]ny provi-sion or clause waiving or limiting the right to sue for negligence or malpractice in any admission agreement or contract between a patient and a nursing home or assisted living facility . . . whether executed prior to, on or after [January 12, 2002,] the effective date of this act, is hereby declared to be void as against public policy and wholly unenforceable, and shall not constitute a defense in any action, suit or proceeding." 4 We must comply with Marmet, but we are not required to agree. See Reinauer Realty Corp. v.
Borough of Paramus, 34 N.J. 406, 415, 169 A.2d
814 (1961); Crespo v. Crespo, 408 N.J. Super.
25, 37, 972 A.2d 1169 (App. Div. 2009), aff'd
o.b., 201 N.J. 207, 989 A.2d 827 (2010). Alt-hough we willingly embrace the concept of fed-eral supremacy, we find it distressing that invoca-tion of the "liberal federal policy favoring arbitra-tion," [***3] see Moses H. Cone Mem. Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct.
927, 941, 74 L. Ed. 2d 765, 785 (1983), in many cases has caused the forfeiture of important rights because consumers and employees lack the bar-gaining power to object to an arbitration clause's inclusion; citation of the "liberal federal policy favoring arbitration" merely evokes the old say-ing, "a good catchphrase can obscure fifty years of analysis."
Despite its broad interpretation of the FAA and its supremacy over specific state policies and practices,5 the Supreme Court has recognized the "fundamental princi-ple that arbitration is a matter of contract," Rent-A-
Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct.
2772, 2776, 177 L. Ed. 2d 403, 410 (2010), thereby per-mitting application of state contract law to ascertain whether the parties had a meeting of the minds when contracting, and whether a party, who has ostensibly agreed to waive the right to trial by jury, has clearly and unambiguously consented to arbitration, Atalese v. U.S.
Legal Servs. Grp., L.P., 219 N.J. 430, 442, 444, 99 A.3d
306 (2014), cert. denied, U.S. , 135 S. Ct. 2804, 192
L. Ed. 2d 847 (2015). In light of these principles, we turn to the specific facts of this case.
5 In recognizing that the Nursing Home Act's sensible bar on compelled arbitration must give way to the FAA's long reach, we see no impedi-ment to the indirect enforcement of the policies embedded in N.J.S.A. 30:13-8.1 through the state's licensing power over such facilities.
Because the trial judge summarily granted defend-ant's [***4] motion to compel arbitration and because
our review of that determination is de novo, we assume as true the factual opposition presented by [**150] plaintiff in response to defendant's motion. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666
A.2d 146 (1995). In opposition to the motion, Frank J. McMahon asserted his then [*549] eighty-five-year-old sister, plaintiff Mary T. Kleine, was "still suffering from the consequences of the trauma she had endured" at a nursing facility operated by the other defendants,6 when, through a power of attorney, he sought her admission at defendant's facility. An individual in the admissions of-fice presented him with "a stack of papers, of which the admission agreement was one of several" documents, and he was told "to sign and initial wherever indicated." McMahon was then "left alone to do so, without any further explanations or instructions."
6 Defendants Emeritus At Emerson, Brea Emer-son, LLC d/b/a Emeritus at Emerison, and Emeri-tus Corporation (collectively, Emerson).
McMahon further asserted:
No one told me, and I did not notice, that the agreement contained a waiver of my sister's civil rights, including her right to a jury trial and her right to appeal any adverse decision to an appellate court. I also was not told that my sister [***5] would have to pay for one-half the cost of the arbitration. In fact, the admission per-son said nothing to me about the contents of the agreement, except that I had to sign it for my sister, and that I had to sign it right away because my sister was being admitted to that nursing home.
No one told me that I had a right to consult with counsel before signing or that my sister's admission to the facility was not contingent upon my signing the agreement. If I had understood that such a provision was contained in the admission agreement, I would have asked for an ex-planation so I could understand what this provision meant. If I had been told that by signing I would not only give up her right to a jury trial, but also would waive her right to appeal from any decision, and that she would have to pay for one-half the cost of any proceeding to determine whether Care One was negligent or caused her injury, I would certainly have asked whether I was required to agree as a condition of her admission, and I would probably have spoken with an attorney to
218
Page 3 445 N.J. Super. 545, *; 139 A.3d 148, **;
2016 N.J. Super. LEXIS 80, ***
fully understand the effect of this agree-ment.
. . . .
My sister's finances are very limited. She is currently paying the cost of the Al-lendale Nursing [***6] Home (about $5,000 per month) from the proceeds of the sale of her house in 2010, which funds should last her another two years or so, so long as she does not have any large unan-ticipated expenses. Her only income is the $1,191 she receives from Social Security. When her savings are expended, she will have to apply for Medicaid coverage.
My understanding is that qualified arbitrators charge $400-500 or more per hour for their services. If our case re-quired 4-5 seven hour days to present all the testimony and documentary evidence, plus another day for the arguments of [*550] counsel and the arbitrator's con-sideration of the evidence, the arbitrator's fees would range from $14,000 -- 18,000 and maybe more if more hearing days are needed or the arbitrator was more expen-sive, which means my sister would have to pay $7,000 -- 9,000 or more, plus the cost of a transcript if we want to obtain one, all with her limited resources. Con-sequently, my sister could only afford to pay for an arbitrator to hear the case if she sacrificed her ability to pay for her con-tinued life at the assisted [**151] living facility. I do not believe that is a choice she should have to make -- and I would not have signed the admission [***7] agreement as worded if I had been told that she would have to pay that amount of money in order to have her claims heard.
The trial judge was required to assume the truth of these sworn statements and assume there was no meeting of the minds about the arbitration of disputes.
Defendant's arbitration clause provided in upper case and bold lettering:
Any controversy or claim arising out of or relating to this agreement and brought by the resident, his/her personal represen-ta-tives, heirs, attorneys or the responsible party shall be submitted to binding arbi-tration by a single arbitrator selected and
administered pursuant to the commercial arbitration rules of the American Arbitra-tion Association. . . .7 Any claimant con-templated by this paragraph hereby waives any and all rights to bring any such claim or controversy in any manner not expressly set forth in this paragraph, including, but not limited to, the right to a jury trial.8
7 We have omitted a sentence that describes the impact of applicable statutes of limitations be-cause of its lack of relevance here. 8 The contract's next separate provision, also in upper case and bold lettering, states: "This agreement is a binding legal document. The [***8] resident has read and understands the agreement and acknowledges that, if so desired, the resident and/or [sic] responsible party has been given the opportunity to consult with legal counsel." It is difficult to imagine an infirm indi-vidual, or his or her family member, is likely to delay admission while taking the time to seek a legal opinion about the contract. Our Legislature likely appreciated these realities -- to which the "liberal federal policy favoring arbitration" is blind -- when enacting N.J.S.A. 30:13-8.1.
It is well-established that the party from whom an arbitration clause has been extracted must "clearly and unambiguously" agree to a waiver of the right to sue. Atalese, supra, 219 N.J. at 443, 99 A.3d 306; see also
Morgan v. Raymours Furniture Co., 443 N.J. Super. 338,
343, 128 A.3d 1127 (App. Div. 2016), certif. denied, N.J. , 225 N.J. 220, 137 A.3d 533, 2016 N.J. LEXIS
450 (Apr. 25, 2016). We agree the arbitration [*551] clause unambiguously declares the resident's waiver of the right to pursue a claim in any fashion other than as set forth, but other aspects of the clause suggest it may be unconscionable.
For example, it is only the resident or the resident's representative who is asked to waive the right to seek redress in the courts; the clause's insistence on the utili-zation of arbitration applies to "any controversy or claim arising out of or relating to this agreement and brought by the [***9] resident [or the resident's representa-tives9]" (emphasis added). If the use of the word "and" were not sufficient to demonstrate the promise to arbi-trate was made only by the resident or her representa-tives, certainly the clause's last sentence, which describes the waiver of the right to pursue the claim or controversy in some manner other than arbitration, is expressed only
219
Page 4 445 N.J. Super. 545, *; 139 A.3d 148, **;
2016 N.J. Super. LEXIS 80, ***
by "any claimant contemplated by this paragraph," i.e., the resident or her representatives. In short, only the plaintiff was bound; defendant made no such promise, retaining for itself not only the right to sue the resident or her representatives in any court of competent jurisdiction but also the right to have its own claims resolved by trial by jury.
9 These representatives are identified as "his/her personal representatives, heirs, attorneys or the responsible party."
As observed earlier, arbitrability was decided sum-marily. At that stage, the judge was required to assume the truth of [**152] McMahon's sworn statements and consider the language of the agreement in the light most favorable to plaintiff. Brill, supra, 142 N.J. at 540, 666
A.2d 146. Had the judge done so, the one-sided waiver extracted by defendant, as well as an assumption of the truth of McMahon's [***10] assertions about the manner in which the contract was formed, would have required an evidentiary hearing related to unconscionability. See,
Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J.
1, 15, 912 A.2d 88 (2006), cert. denied, 549 U.S. 1338,
127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). If that was all that was before us, we would remand for such an eviden-tiary hearing and the judge's consideration of both proce-dural and [*552] substantive unconscionability factors related to the contract. See Sitogum Holdings, Inc. v.
Ropes, 352 N.J. Super. 555, 564-66, 800 A.2d 915 (Ch.
Div. 2002) (recognizing that procedural unconscionabil-ity includes consideration of "a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract for-mation process," and substantive unconscionability in-volves consideration of harsh or unfair one-sided terms embedded in the contract). The application of our com-mon law unconscionability principles in this fashion would not create an obstacle inconsistent with FAA prin-ciples. See AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 339-40, 131 S. Ct. 1740, 1746, 179 L. Ed. 2d 742,
751 (2011).
But we reverse because the arbitration process con-templated by the clause in question was not available when the parties executed their contract. In opposing the motion to compel arbitration, plaintiff provided a certifi-cation, which authenticated an attached AAA statement that unequivocally [***11] expressed that, as of January 1, 2003, AAA would "no longer accept the administra-tion of cases involving individual patients without a post-dispute agreement to arbitrate." Consequently, when the parties contracted, their exclusive forum for arbitration was no longer available; there being no agreement to arbitrate in any other forum, arbitration could not be
compelled. In short, even assuming the clause was oth-erwise enforceable and consented to by plaintiff, there was no meeting of the minds as to an arbitral forum if AAA was not available.10 As Atalese instructs, the party from whom such a [*553] provision has been extracted must be able to understand -- from clear and unambigu-ous language -- both the rights that have been waived and the rights that have taken their place. See Atalese,
supra, 219 N.J. at 444, 99 A.3d 306; see also Khan v.
Dell, Inc., 669 F.3d 350, 357-59 (3rd Cir. 2012) (Sloviter, J., dissenting). Because AAA was not available to administer the arbitration of this dispute at the time the contract was formed, or even at the time the trial court ruled on the application,11 the judge mistakenly [**153] compelled arbitration of plaintiff's personal injury claims against this defendant.12
10 We are mindful defendant has argued the clause does not require AAA arbitration, only that the arbitration [***12] be administered pur-suant to AAA's commercial arbitration rules; in other words, defendant contends that the provi-sion does not limit the appointment of a substitute administrator so long as that administrator applies AAA's commercial arbitration rules. It is difficult to conclude that a reasonable reader of this lan-guage -- particularly one simultaneously contem-plating the placement of an elderly sister in a nursing home -- would make that fine distinction even if defendant's interpretation was plausible. Moreover, the forfeiture of legal rights and the compelling of arbitration over objection is not a three-card monte game. Atalese requires greater clarity and less ambiguity in determining whether and how to enforce such a clause. We reject the notion that a court must adopt defendant's strained interpretation of the clause it alone draft-ed. 11 In its appendix, defendant provided a docu-ment purporting to represent AAA's current posi-tion, which, if true, would suggest AAA has a new-found willingness to administer such dis-putes. The document is undated and was not ap-pended to a statement swearing to its authenticity or identifying when this alleged change in policy occurred. We, accordingly, [***13] give this item no consideration in concluding that arbitra-tion could not be compelled because the parties' exclusive forum was unavailable. 12 Compelling arbitration provides further com-plications. Plaintiff alleges two separate acts of negligence against two groups of defendants. Be-cause of personal injuries allegedly suffered in Emeritus's facility, plaintiff moved to defendant's facility; she claims she was later injured as a re-
220
Page 5 445 N.J. Super. 545, *; 139 A.3d 148, **;
2016 N.J. Super. LEXIS 80, ***
sult of defendant's negligence. Although both fa-cilities extracted arbitration clauses when admit-ting plaintiff -- we can only wonder whether this is the industry standard despite what N.J.S.A.
30:13-8.1 prohibits -- in earlier proceedings a dif-ferent judge denied arbitration of plaintiff's claims against Emeritus because Emeritus's pro-vision required arbitration administered by the National Arbitration Forum, which also does not offer its services for any claim arising out of "any aspect of healthcare." If the arbitration clause in question in this appeal were to be enforced, plain-tiff would be relegated to two different fora and face the possibility of inconsistent results; both those circumstances are inconsistent with New Jersey policies and any modern thought on litiga-tion [***14] and, indeed, would run counter to the reasons that originally triggered our state pol-
icy in favor of arbitration -- the providing of "a speedy, inexpensive, expeditious and perhaps less formal manner" disposition of claims. See Car-
penter v. Bloomer, 54 N.J. Super. 157, 162, 148
A.2d 497 (App. Div. 1959).
[*554] The April 21, 2015 order compelling arbi-tration is reversed.13
13 The motion judge never appointed a re-placement of the unavailable arbitral forum and never described what the parties were to do next. The order merely "directed" plaintiff "to arbi-trate" with defendant and "dismissed" the "mat-ter" from "th[e] [c]ourt's jurisdiction." Even if the judge correctly ruled, the claims against defend-ant should only have been stayed, not dismissed. See N.J.S.A. 2A:23B-7(g).
221
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ANTHONY McCORMICK, Plaintiff-Appellant, v.
STATE OF NEW JERSEY, Defendant-Respondent.
DOCKET NO. A-3493-14T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2016 N.J. Super. LEXIS 116
August 9, 2016, Submitted August 25, 2016, Decided
SUBSEQUENT HISTORY: [*1] Approved for Pub-lication August 25, 2016. PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Cumberland Coun-ty, Docket No. L-537-12. James v. County of Middlesex, 2016 N.J. Super. Unpub.
LEXIS 1960 (App.Div., Aug. 25, 2016) McCormick v. New Jersey, 2013 U.S. Dist. LEXIS 38208
(D.N.J., Mar. 19, 2013) COUNSEL: Franzblau Dratch, P.C., attorneys for appel-lant (Brian M. Dratch, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief). JUDGES: Before Judges Sabatino, Messano and Gilson. The opinion of the court was delivered by SABATINO, P.J.A.D. OPINION BY: SABATINO OPINION
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal poses a legal issue not previously decid-ed in case law under the Affidavit of Merit ("AOM") statute, N.J.S.A. 2A:53A-26 to -29. The matter arises in
the context of a plaintiff injured by the alleged negli-gence of licensed professionals, who are claimed to have deviated from applicable standards of care while provid-ing services at the behest of a public entity. The issue is whether the plaintiff can avoid the need to obtain an AOM by suing only the public entity and not the profes-sionals. For the reasons that follow, we conclude that such circumvention of the statute is impermissible and affirm the trial court's determination [*2] that an AOM was required in this case. We remand, however, for fur-ther proceedings to explore more fully whether the sanc-tion of dismissal of this lawsuit is justified. I.
The relevant circumstances are as follows. Since Oc-tober 2008 defendant, the State of New Jersey, has con-tracted with Rutgers University Correctional Health Care, formerly part of the University of Medicine and Dentistry of New Jersey ("UMDNJ"), to provide State prison inmates with medical, dental, and mental health services. In that role, UMDNJ provided medical staff and services to the inmates at South Woods State Prison ("South Woods") during the time period relevant to this case.
Plaintiff Anthony McCormick was a State prisoner serving a twenty-year sentence at South Woods. Plaintiff claims that in June 2010, he began complaining to medi-cal staff working at South Woods of "severe pain in the front area of his head," for which he was given Motrin. According to plaintiff, no diagnostic tests were conduct-ed, and he was left to "needlessly suffer" for a month without additional medical care.
223
Page 2 2016 N.J. Super. LEXIS 116, *
Plaintiff's symptoms persisted, and he was trans-ferred on June 29, 2010 to St. Francis Medical Center for diagnosis and treatment. [*3] A CT scan was performed, and it was determined he was suffering from a "[r]uptured right parietal brain abscess with ventriculi-tis." Plaintiff consequently underwent brain surgery at St. Francis on July 1, 2010. The abscess was evacuated, and he was discharged back to South Woods on July 16, 2010 "in stable condition."
Records of plaintiff's follow-up care performed in October 2010 at the prison's Extended Care Unit noted that he was complaining of blurry vision and dizziness. Neurological testing also revealed signs of cognitive impairment. A medical report stated that plaintiff's "thought process and behavior is that of a [six to seven] year old child," and recited various delusional statements he made during the course of the examination. The report did not state whether the cognitive issues existed prior to the detection of the brain abscess.
Plaintiff submitted a notice of tort claim to the State Treasury's Bureau of Risk Management in October 2010. He then filed a two-count complaint in the Law Division against the State on June 20, 2012. No medical profes-sionals or other defendants were named. Plaintiff did not include any fictitiously-named parties pursuant to Rule
4:26-4.
In count one of his complaint, [*4] plaintiff alleged the medical staff at South Woods had "careless[ly], reck-less[ly], and negligen[tly]" failed to "properly treat [his] cerebral condition, [causing] severe and permanent per-sonal injuries[.]" Based upon the same factual allega-tions, he asserted in count two violations of his rights under the federal and state constitutions, as well as the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-1 to
-2. The complaint did not mention UMDNJ or Rutgers University Correctional Health Care in its factual asser-tions.
The lawsuit was briefly removed to federal court on the State's motion. Plaintiff moved to remand the matter back to state court, and the State cross-moved for sum-mary judgment. The United States District Court granted the State's cross-motion in part, dismissing plaintiff's federal causes of action. The remaining state law claims were remanded to the Law Division.
The State then moved in the Law Division to dis-miss the complaint, arguing it had not been timely served with a notice of tort claim. The motion was denied. Around this time, it appears that plaintiff voluntarily dismissed the remaining state constitutional and CRA claims in count two.
The State again moved to dismiss count one, arguing that it could not be vicariously [*5] liable for an injury
allegedly caused by employees of UMDNJ. This motion was also denied. The State then answered the complaint and denied liability. It asserted no third-party claims against any persons or entities.
In December 2014, the State filed a third motion to dismiss, arguing for the first time that plaintiff had failed to serve it with an AOM pursuant to N.J.S.A. 2A:53A-27. Plaintiff countered that he was not obligated to provide an AOM because the State, the sole defendant in this case, is not a "licensed professional" or a licensed "health care facility" within the terms or intent of the statute.
Judge Richard J. Geiger granted the State's motion on January 23, 2015, dismissing the complaint with prej-udice. In his decision, Judge Geiger concluded that be-cause the alleged actions and inactions of the medical staff at South Woods involve conduct by licensed profes-sionals, plaintiff must support his claims of negligence with a proper and timely AOM from a qualified profes-sional. Plaintiff moved for reconsideration, which was denied.
This appeal followed. Plaintiff principally contends that he was not obligated, as a matter of law, to file an AOM against the State. Alternatively, he argues that, [*6] if this court finds that such an obligation exists, he should be afforded an opportunity on remand to procure an affidavit. He makes this request because the State did not assert the need for an AOM in its answer and also because the trial court did not conduct a "Ferreira con-ference"1 that could have alerted him sooner to the need for an AOM.
1 See Ferreira v. Rancocas Orthopedic Assocs.,
178 N.J. 144, 836 A.2d 779 (2003). II.
As the Supreme Court reiterated recently, "[t]he stated purpose of the AOM statute . . . is laudatory -- to weed out frivolous claims against licensed professionals early in the litigation process." Meehan v. Antonellis,
N.J. , , 226 N.J. 216, 141 A.3d 1162, 2016 N.J. LEX-
IS 850, *22 (2016) (slip op. at 14) (citing Ferreira, su-
pra, 178 N.J. at 146, 836 A.2d 779); see also Buck v.
Henry, 207 N.J. 377, 383, 25 A.3d 240 (2011).
Pursuant to the mandate expressed in the statute, "[t]he submission of an appropriate affidavit of merit is considered an element of the claim." Meehan, supra,
2016 N.J. LEXIS 850, *22, slip op. at 14-15 (citing Alan
J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 244, 708 A.2d
401 (1998) (holding that a plaintiff's failure to submit the required AOM "goes to the heart of the cause of action as defined by the Legislature")); see also N.J.S.A. 2A:53A-
29. "Failure to submit an appropriate affidavit ordinarily requires dismissal of the complaint with prejudice."
224
Page 3 2016 N.J. Super. LEXIS 116, *
Meehan, supra, 2016 N.J. LEXIS 850, *23, slip op. at 15 (citing Cornblatt, supra, 153 N.J. at 243, 708 A.2d 401).
Section 27 of the AOM statute provides, in relevant part:
In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff [*7] shall, within 60 days following the date of the filing of the an-swer to the complaint by the defendant, provide each defendant with an affidavit
of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or oc-
cupational standards or treatment prac-
tices.
[N.J.S.A. 2A:53A-27 (emphasis add-ed).]
The statute also provides that a "licensed person," in the context of malpractice claims against health care providers, includes a person licensed as "a physician in the practice of medicine or surgery"; "a podiatrist"; "a chiropractor"; "a registered professional nurse"; "a health care facility"2 ; "a physical therapist"; and "a registered pharmacist[.]" N.J.S.A. 2A:53A-26(f)-(m). The medical staff at South Woods who examined and treated plaintiff, although not identified by name or by occupation in his complaint, include such "licensed persons."
2 The AOM statute defines the term "health care facility" as a "facility or institution whether pub-lic or private, engaged principally in providing services for health maintenance organizations, di-agnosis, or treatment [*8] of human disease, pain, injury, deformity, or physical condition[.]" N.J.S.A. 26:2H-2(a). The definition expressly in-cludes, but is not limited to, hospitals, treatment centers, nursing homes, clinics, "dispensar[ies]," "home health care agenc[ies]," and "bioanalytical laborator[ies] . . . or central services facilit[ies] serving one or more such institutions[.]" Ibid.
Plaintiff contends he was not required to serve an AOM in this case because the State, as the sole named defendant, is literally not a "licensed person" as defined in N.J.S.A. 2A:53A-26. Nor does the State meet the stat-ute's definition of a "health care facility" because it is not
"engaged principally" in health care. N.J.S.A. 26:2H-
2(a). In addition, the State is not a "professional corpora-tion[] . . . entirely owned by . . . licensed professionals." Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 273,
27 A.3d 1260 (App. Div. 2011) (holding that if the de-fendant in a malpractice case is a professional corpora-tion, then "a plaintiff is required to provide an AOM in order to pursue litigation against the firm alone under respondeat-superior principles").
As the trial court aptly recognized, these arguments based on a hyper-literal reading of the AOM statute do not excuse plaintiff from his failure to supply a proper affidavit to support his claims that fundamentally are allegations of medical negligence. [*9] He cannot avoid the important screening mechanism of the AOM statute by suing only the public entity that procured the services of the individual health care professionals who worked at the prison.
We rejected a similar effort to get around the AOM requirement in Shamrock Lacrosse, Inc. v. Klehr, Harri-
son, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super.
1, 3 A.3d 518 (App. Div. 2010). In that case, the plaintiff, a patent holder, alleged it had been injured by various acts of legal malpractice by an attorney who was han-dling its patent matters. The plaintiff sued the two law firms that had successively employed the lawyer whose negligent conduct was in question and who had since died. Id. at 8-9, 3 A.3d 518. The plaintiff "presumably wishe[d] to invoke principles of vicarious liability" to make the law firms liable for the conduct of their former employee. Id. at 23, 3 A.3d 518.
We concluded in Shamrock Lacrosse that a law firm, even though it did not itself hold a license to prac-tice law, should be treated as a "licensed person" under the AOM statute in cases arising out of its associates' allegedly deficient professional conduct. The defendant law firms were therefore entitled to an AOM. Id. at 25,
27, 3 A.3d 518. We reasoned that the AOM requirement's "focus is on the resulting harm, not on the business forms of the named defendants" who have been sued. Id. at 23,
3 A.3d 518. We rejected the plaintiff's [*10] attempt to evade the requirements of an AOM through its overly literal construction of the statute, one that would under-mine the public policies the Legislature sought to achieve. Id. at 21-22, 3 A.3d 518; see also Albrecht, su-
pra, 422 N.J. Super. at 272-74, 27 A.3d 1260 (reaffirm-ing the policy analysis of Shamrock Lacrosse).
We apply here a similar analysis, focusing on the na-ture of the underlying conduct of the medical personnel who allegedly harmed the injured plaintiff. The State employs or utilizes through contracts a host of licensed professionals who work in its prisons, hospitals, mental health facilities, institutions, transportation systems, and
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other operations. These professionals include doctors, nurses, therapists, counselors, engineers, and scores of other licensees encompassed within the broad sweep of the AOM statute. N.J.S.A. 2A:53A-26.
If such professionals while serving the State, or for that matter any other public entity, engage in harmful conduct that deviates from the standards of care of their respective fields of licensure, and a plaintiff claims that the defendant public entity is liable for that harm under agency principles, then an AOM from an appropriate qualified person is necessary to support the lawsuit. See
Meehan, supra, 2016 N.J. LEXIS 850, *23, slip op. at 17-
25 (explaining who may be an appropriate [*11] affiant in cases respectively involving Sections 27 and 41 of the AOM statute).3 The AOM is required, regardless of whether the plaintiff chooses to name the negligent pro-fessionals as co-defendants. A plaintiff cannot circum-vent the intent of the Legislature by suing only the public entity.
3 As the Court clarified in Meehan, if the pro-fessional who caused the harm is a physician, the more stringent specialization and sub-specialization requirements of the Patients First Act, as set forth in Section 41, may constrict the range of appropriate affiants. Ibid.; see also
Nicholas v. Mynster, 213 N.J. 463, 479-80, 64
A.3d 536 (2013).
In enforcing this obligation and thus carrying out the legislative objectives of the AOM statute, we caution that an affidavit will only be needed when the underlying harmful conduct involves professional negligence, impli-cating the standards of care within that profession. Hence, if a nurse working in a State prison inattentively stumbles on a stairway and knocks over an inmate, or carelessly spills his or her cup of scalding hot coffee on a prisoner in the hallway, or engages in some other form of negligent conduct that does not implicate professional standards of care, then no AOM is required. See Hill
Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562,
590-91, 106 A.3d 487 (App. Div. 2014) (offering further examples of situations in [*12] which no AOM would be required), appeal dismissed, 224 N.J. 523, 135 A.3d
144 (2016); see also Murphy v. New Rd. Constr., 378
N.J. Super. 238, 242-43, 875 A.2d 955 (App. Div.), certif.
denied, 185 N.J. 391, 886 A.2d 661 (2005) (holding that an AOM was not required to pursue negligence claims against an architectural firm if the allegations did not implicate the standards of care of that profession). Nor is an AOM required if the plaintiff's claims against the pub-lic entity are based upon matters of common knowledge. Couri v. Gardner, 173 N.J. 328, 340, 801 A.2d 1134
(2002); Triarsi v. BSC Grp. Servs., L.L.C., 422 N.J. Su-
per. 104, 114, 116-17, 27 A.3d 202 (App. Div. 2011).
The need for a supporting affidavit and the qualifica-tions of a suitable affiant are fact-sensitive, and depend on the circumstances of each case. Meehan, supra, 2016
N.J. LEXIS 850, slip op. at 29-30. If an AOM is called for, a plaintiff may not evade the requirement by suing only a public entity and arguing that the entity is not a licensee listed under Section 26. We thus extend the holding of Shamrock Lacrosse to contexts involving pub-lic entity defendants and to claims of professional negli-gence beyond legal malpractice.
We reject plaintiff's argument that he does not need an AOM because he has sued the State on a theory of vicarious liability. To be sure, under the Tort Claims Act, public entities may be vicariously liable for certain acts of their employees and agents, subject to certain immuni-ties and limitations. See N.J.S.A. 59:2-2 (generally providing for such vicarious liability [*13] for the acts of public employees); but see N.J.S.A. 59:1-34 (excluding independent contractors from the definition of a public employee); N.J.S.A. 59:2-10 (disallowing vicarious lia-bility where the public employee's actions or inactions comprise a crime, actual fraud, or willful misconduct). Nothing in the Tort Claims Act requires that the individ-uals whose negligent conduct creates the public entity's liability be named as co-defendants in the action.
4 As mentioned previously, the State argued that it could not be vicariously liable for the acts of employees of an independent contractor (i.e., UMDNJ) in its second motion to dismiss. The State has not cross-appealed the denial of that motion. Generally, "[c]ontracting out prison med-ical care does not relieve the State of its constitu-tional duty to provide adequate medical treatment to those in its custody[.]" Scott-Neal v. N.J. Dep't
of Corr., 366 N.J. Super. 570, 575-76, 841 A.2d
957 (App. Div. 2004) (quoting West v. Atkins, 487
U.S. 42, 56, 108 S. Ct. 2250, 2259, 101 L. Ed. 2d
40, 54 (1988)). The "non-delegable" nature of this duty "is an exception to the general rule that one who hires an independent contractor is not li-able for the negligence of that contractor." Ibid.
Even so, our case law recognizes that an AOM is still required when the plaintiff's claim of vicarious lia-bility hinges upon allegations of deviation from profes-sional standards of care [*14] by licensed individuals who worked for the named defendant. In Borough of
Berlin v. Remington & Vernick Engineers, 337 N.J. Su-
per. 590, 767 A.2d 1030 (App. Div.), certif. denied, 168
N.J. 294, 773 A.2d 1158 (2001), we considered allega-tions of malpractice against a professional engineering firm for failing to adhere to "hydrogeologic guidelines in applying for a water allocation permit" in the negligent siting of two wells. Id. at 596, 767 A.2d 1030. The plain-
226
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tiff in Berlin obtained an AOM from a hydrogeologist, and the defendant argued that the AOM was inadequate because it was not from a professional engineer. Id. at
594, 767 A.2d 1030. We concluded that the hydrogeolo-gist affiant was an appropriately licensed person to sub-mit the AOM against the engineering firm. Id. at 597-98,
767 A.2d 1030. In that regard we noted that the "appro-priate licensed person" from whom an AOM should be sought is not always dictated by the primary specialty of the professional corporation being sued. Id. at 598-99,
767 A.2d 1030. But an AOM was still necessary, albeit supplied from a different professional than the defendant demanded, in that vicarious liability context. Ibid.5
5 The Supreme Court recently cited our analysis in Berlin with approval in Meehan, supra, 2016
N.J. LEXIS 850, slip op. at 27-28.
For these reasons, we affirm the trial court's sound determination that plaintiff was required to procure an AOM in this case, in which he claims that he was negli-gently cared for by the State [*15] prison's medical staff. We now turn to the question of whether the trial court's sanction of dismissal of plaintiff's lawsuit was appropri-ate.
Plaintiff contends that he was deprived of a fair op-portunity to obtain an AOM in this case. He notes that the State did not assert the lack of an AOM as an affirm-ative defense with its answer. More importantly, he em-phasizes that the trial court did not conduct the required Ferreira conference, at which the need for an AOM could have been made clear before the statutory deadline for serving an AOM expired.
In the Court's recent opinion in Meehan, supra, it underscored the importance of "a timely and effective" Ferreira conference in assuring the proper and fair im-plementation of the AOM statute. Meehan, supra, 2016
N.J. LEXIS 850, slip op. at 34. As the Court explained, "[t]he conference is designed to identify and resolve is-sues regarding the [AOM] that has been served or is to be served." Ibid. The Court noted that the conference "continues to be a critical component of fulfilling the purpose of the AOM statute." 2016 N.J. LEXIS 850, *41,
slip op. at 33. It further observed that had such an effec-tive Ferreira conference been conducted, it "would probably have prevented [the] appeal." Ibid. However, the Court did not go so far as to hold that the [*16] lack of an effective conference required reversal, because it found the AOM that the plaintiff procured from a pros-thodontist sufficed to support his claims against the de-fendant orthodontist who installed his sleep apnea de-vice. 2016 N.J. LEXIS 850, slip op. at 31-33.
Given the Supreme Court's recent guidance in Meehan, we cannot conclude on the limited record be-
fore us that the lack of a Ferreira conference in this case was inconsequential. On the one hand, until we issued this opinion, there was no published case that expressly held, as we do today, that an AOM may be required when a tort plaintiff sues a public entity for vicarious liability based on the professional negligence of its staff. Hence, a Ferreira conference in this case might have been inconclusive in the absence of such clear precedent. See, e.g., Hill Int'l, supra, 438 N.J. Super. at 594-95, 106
A.2d 487 (excusing timely compliance with the AOM requirement because existing case law was unclear about whether an AOM from an engineer could suffice against an architect); Shamrock Lacrosse, supra, 416 N.J. Super.
at 29, 3 A.3d 518 (likewise excusing the lack of timely compliance where prior decisional law from the federal courts was split on whether an AOM against a law firm was required).
On the other hand, we are mindful that plaintiff's counsel represents a different plaintiff [*17] in a com-panion unpublished appeal we also decide today, James
v. County of Middlesex, No. A-5424-14, 2016 N.J. Super.
Unpub. LEXIS 1960 (App. Div. August 25, 2016). In James, the plaintiff sued a public entity, a county that operated the jail where he was housed and allegedly giv-en inadequate medical care, as well as a private contrac-tor that provided medical services to the county for its inmates. As in this case, the plaintiff in James initially did not serve an AOM. However, he eventually procured one within the statutory deadline, although defense coun-sel challenged the affiant's credentials.
The parallel circumstances suggest that plaintiff's counsel in both this case and in James has been pursuing a strategy to advance "test cases," in an attempt to avoid the AOM requirement by suing public entities but not individual licensed professionals who provided the med-ical care. We cannot tell if that strategic supposition is true.
Nor is it clear that if a Ferreira conference had been held here and if, hypothetically, the trial court directed that an AOM was required, that Mr. McCormick (or those who may assist him in making decisions, given his cognitive problems) would have disregarded the court's admonition, refused [*18] to procure an AOM, and tak-en his chances on appeal.
Because the record is presently inadequate for us to resolve the sanction issue, we remand for further pro-ceedings in the trial court to explore the subject further, guided by the Supreme Court's opinion in Meehan and our opinion in this case. The court shall have discretion to conduct a plenary hearing on the subject as it may see fit, after the parties have been afforded the opportunity to submit further briefs and certifications. The trial court shall determine, in light of Meehan and the distinct pro-
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Page 6 2016 N.J. Super. LEXIS 116, *
cedural circumstances here, whether it is equitable to deny plaintiff an opportunity to cure the omission of an AOM within a reasonable time frame.6
6 That said, we reject plaintiff's specific argu-ment that the State is equitably estopped from in-sisting on any affidavit. Knorr v. Smeal, 178 N.J.
169, 178, 836 A.2d 794 (2003). The assessment on remand is instead confined to matters of tim-ing and whether plaintiff should be afforded addi-tional time to produce the AOM now that the governing law has been clarified.
Lastly, we provide the following guidance for future litigants. In cases such as this, where a plaintiff chooses to sue a public entity for medical malpractice on a theory of vicarious [*19] liability, the defendant entity is obli-gated to comply with Rule 4:5-3 by including in its an-swer the identities and specialties of the physicians, if any, involved in the defendant's care, along with whether the treatment the defendant received involved those spe-cialties. See Buck, supra, 207 N.J. at 396, 25 A.3d 240. The plaintiff must then obtain and serve appropriate affi-davits of merit within sixty days of the filing of the an-swer -- as discussed by the Court in Meehan and required under Sections 27 and 41 of the AOM statute -- that cor-respond to the qualifications of the individual profes-sionals disclosed by the defendant. The trial court may
grant an additional sixty days to procure the AOM upon a finding of good cause. N.J.S.A. 2A:53A-27.
A Ferreira conference must be held within ninety days of service of the answer, at which time the plain-tiff's obligations under the AOM statute may be clarified and the court and counsel may address the adequacy of any AOM already obtained. The plaintiff will have until the end of the 120-day period permissible under the AOM statute to correct any deficiencies. Buck, supra,
207 N.J. at 394, 25 A.3d 240. We underscore that the purpose of the Ferreira conference is to identify and resolve AOM-related problems that arise. Meehan, su-
pra, 2016 N.J. LEXIS 850, slip op. at 33. The conference is not intended to be a substitute [*20] for reasonable communication between opposing counsel to resolve AOM issues in the first instance.
If the Ferreira conference fails to resolve a plain-tiff's need for more information from defendant to pro-cure an appropriate AOM, the plaintiff must comply with the statutory scheme by providing a "sworn statement in lieu of the [AOM]" pursuant to N.J.S.A. 2A:53A-28, until the necessary disclosure occurs.
Affirmed in part and remanded in part. We do not retain jurisdiction.
228
AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, T.T., AND T.T., INDIVIDUALLY
vs. M. COHEN, M.D., ET AL.
Docket No: A-0589-14T1
April 27, 2016
The issue in this medical malpractice case is whether a minor plaintiff can take a
voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. The court concludes that Rule 4:37-1(b) cannot be used to circumvent the time strictures in the AOM statute even if the statute of limitations has not expired.
Plaintiff's counsel failed to file an AOM within 120 days of the filing of the answer. No
extraordinary circumstances were presented; just an "oversight" of counsel. After defendants moved for summary judgment, counsel requested leave to take a voluntary dismissal under Rule 4:37-1(b), reasoning that there remained many years until the expiration of the statute of limitations due to plaintiff's status as a minor and there was no prejudice to defendants.
The court finds that permitting a voluntary dismissal in these circumstances would
render the AOM statute and its underlying purpose meaningless. The minor's claim was pursued by her guardian ad litem and she was represented by counsel. The Legislature did not choose to carve out an exception for minors under the AOM statute as it has done with the statute of limitations in tort cases.
Judge Fisher dissents, concluding that a trial judge should have the authority to exercise
discretion and grant a voluntary dismissal, if appropriate, to preserve the future of a minor's malpractice action. He notes the protections afforded minors, including the equitable tolling of a minor's suit under the Wrongful Death Act and the process requiring judicial approval of settlement reached on behalf of minors, R. 4:44. He finds the minimal prejudice incurred by defendants can be addressed by the trial judge with the imposition of any terms necessary to alleviate that harm upon the re-filing of the complaint.
229
----- Reprinted with permission of LexisNexis.
SEOUNG OUK CHO, DECEASED, BY HIS ADMINISTRATOR, YUNJIN JO, YUNJIN JO, YOUNG HO JO, AND HANNAH CUI,
PLAINTIFFS--APPELLANTS, v.
TRINITAS REGIONAL MEDICAL CENTER AND NJ HEART, DEFENDANTS, AND JOHN HAN SHAO, M.D., GARDEN STATE CARDIOVASCULAR
SPECIALISTS, EDWARD G. WILLIAMS, M.D., AND HYEUN PARK, M.D., DEFENDANTS--RESPONDENTS.
DOCKET NO. A-5923-13T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
443 N.J. Super. 461; 129 A.3d 350; 2015 N.J. Super. LEXIS 214
November 17, 2015, Argued December 30, 2015, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication December 30, 2015. Certification denied by Seoung Ouk Cho v. Trinitas Reg'l
Med. Ctr. & NJ, 2016 N.J. LEXIS 413 (N.J., Apr. 25,
2016) PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-104-11. COUNSEL: Michael S. Kimm argued the cause for ap-pellants (Kimm Law Firm, attorneys; Mr. Kimm and Sung H. Jang, on the briefs). Jason M. Altschul argued the cause for respondents John Han Shao, M.D. and Garden State Cardiovascular Spe-cialists (Krompier & Tamn, L.L.C., attorneys; Richard J.
Tamn, of counsel and on the brief; Mr. Altschul, on the brief). Brion D. McGlinn argued the cause for respondent Ed-ward G. Williams, M.D. (Ruprecht Hart Weeks & Ric-
ciardulli, LLP, attorneys; David Parker Weeks, of coun-sel and on the brief; Mr. McGlinn, on the brief). Gary L. Riveles argued the cause for respondent Hyeun Park, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr.
Riveles, on the brief).
JUDGES: Before Judges FISHER, ESPINOSA and ROTHSTADT. The opinion of the court was delivered by ESPINOSA, J.A.D. OPINION BY: ESPINOSA OPINION
[*464] [**352] The opinion of the court was de-livered by
ESPINOSA, J.A.D.
In Klier v. Sordoni Skanska Construction Co., 337
N.J. Super. 76, 766 A.2d 761 (App.Div.2001), we held the plaintiffs were denied due process of law when a trial court sua sponte conducted a summary procedure on the day of trial and dismissed their complaint. This medical malpractice case presents an unfortunately [***2] more common variation of the scenario in which a litigant's case is dismissed on the day of trial. Although labeled a "motion in limine," the motions filed by defendant Hy-eun Park, M.D., on the day before jury selection sought the dismissal of the complaint in its entirety, an admitted violation of the rule governing summary judgment mo-tions. We now hold that the trial court's consideration of these motions and dismissal of the complaint against Park deprived plaintiffs of their right to due process of law.
231
Page 2 443 N.J. Super. 461, *; 129 A.3d 350, **;
2015 N.J. Super. LEXIS 214, ***
I.
Defendant Park was decedent Seoung Ouk Cho's primary care cardiologist. On April 23, 2009, he exam-ined Cho at NJ Heart and admitted him to Trinitas Re-gional Medical Center because Cho complained of chest pain and had an abnormal electrocardiogram (EKG). Defendant John H. Shao, M.D., of Garden State Cardio-vascular Specialists, performed a heart catheterization and an angioplasty (stent). On June 25, 2009, Shao per-formed a second stenting procedure at Trinitas. On July 16, 2009, Cho complained to Park that he "was feeling a little bit worse." Park [*465] performed an EKG, which was normal, and referred Cho for a thallium stress test at Trinitas.
On July 21, 2009, defendant Edward G. Williams, [***3] M.D., administered a stress test to Cho at Trini-tas. Williams was not involved [**353] in scheduling the test, had never met Cho before and did not have any prior knowledge of Cho's medical history or current con-dition. Williams terminated the stress test after approxi-mately six minutes, when Cho's EKG changed and he indicated he was experiencing chest pain. Williams im-mediately administered nitroglycerin spray; Cho's chest pain dissipated.
Williams reached out for Shao. He explained the re-sults of the stress test to a covering physician, who ad-mitted Cho to Trinitas, approximately one hour after Williams terminated the stress test. Williams did not have any further interaction with Cho. On July 23, 2009, while waiting for a scheduled cardiac catheterization, Cho suffered a fatal cardiac arrest.
Plaintiffs are Cho's siblings, Yunjin Jo (Yunjin),1 in-dividually and in her capacity as administrator of his estate, and Young Ho Jo, and Cho's fiancée, Hannah Cui. Their complaint alleged wrongful death, medical negli-gence and breach of contract for medical services. As for the injury suffered, plaintiffs alleged they "lost their loved one; have suffered loss of society and consortium; and have lost [***4] other rights in relation to plaintiff Cho." Their answers to interrogatories identified plain-tiffs' claim for economic damages as follows: "Plaintiff-decedent has lost at least $50,000.00 per year for at least 32 years as plaintiff-decent [sic] would have owned and operated his own business at least until age 70." In her deposition, Yunjin testified she incurred approximately $10,000 in funeral expenses for Cho. No documentation was provided to corroborate this expense or plaintiffs' claims that Cho had his own business, earned any amount of income or provided any financial support to any of the plaintiffs.
1 To avoid confusion, we refer to Cho's sister by her first name.
[*466] Over the course of approximately two years, defendants filed summary judgment motions that result-ed in the dismissal of all of plaintiffs' complaint2 except for the claims against Park.
2 In Points II, III, IV and V of their appeal, plaintiffs argue that the trial court erred in dis-missing the claims against the other defendants, barring Frankenfeld's testimony, dismissing Cui's claims, and further argue that the trial court erred in failing to require defendants to produce records of payments they received from Cho for medical [***5] services. After reviewing these arguments in light of the record and applicable legal princi-ples, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
In November 2011, the claims against Trinitas were dismissed on the ground that plaintiffs failed to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 to
-29.
In March 2012, defendants Park, Garden State and Shao were granted partial summary judgment, dismissing Cui's claims with prejudice on the ground that, as Cho's fiancée she was not entitled to any recovery under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6. The trial court also granted summary judgment to Shao and Gar-den State based upon plaintiffs' failure to produce an expert report that identified how Shao and Garden State deviated from the accepted standard of care.
In July 2012, the claims against Williams were dis-missed on the ground that plaintiffs failed to show his alleged negligence proximately caused Cho's death.
In August 2013, the trial court granted Park's motion to exclude the testimony of plaintiffs' economic expert on the ground that his opinion constituted a net opinion. Plaintiffs filed a motion for leave to appeal this order, which was denied by this [***6] court. [**354] There-after, plaintiffs filed a motion for leave to appeal with the Supreme Court, which denied the motion on December 18, 2013.
In sum, as of August 2013, summary judgment had been granted dismissing the complaint against all de-fendants other than Park. All claims asserted by Cho's fiancée under the Wrongful Death Act had been dis-missed with prejudice. As a result of the [*467] order barring Frankenfeld's expert opinion, plaintiffs lacked expert testimony to support their claims that they suf-fered the loss of economic support from Cho. As of De-
232
Page 3 443 N.J. Super. 461, *; 129 A.3d 350, **;
2015 N.J. Super. LEXIS 214, ***
cember 18, 2013, no requests for appellate review were pending. II.
The matter was listed for trial on Monday, March 31, 2014. This was the second trial date, coming four weeks after the first trial call before the presiding judge. Addressing the parties, the trial judge noted neither the plaintiffs nor defendant Park wanted to pick a jury that day and stated she understood the parties had "in limine motions" to be heard. She announced a jury would be selected "first thing Wednesday morning," followed by opening statements on Wednesday afternoon. She di-rected plaintiffs' counsel to bring all exhibits for marking before 9:00 a.m. Park's counsel confirmed [***7] he had no issue with any of the exhibits. The court reviewed the order of witnesses and that the defense expert would testify before plaintiffs' expert.
When the trial judge turned to address defendant Park's motions, defense counsel was not prepared to ar-gue any in limine motions. He stated,
Judge, I, I did point out in chambers that I may have a motion on Wednesday, and that is to dismiss. I'm still mulling it over, because I don't know what damages are left in this case.
As I said, the Complaint does not ref-erence a survival cause of action. [N.J.S.A.] 2A:15-3 is not pled even re-motely in the Complaint. And as it relates to income loss, that's gone. So, all that's left is companionship advice and Counsel. And that was not referenced [in] the An-swers to Interrogatories. So, I have an As-
sociate working on that for me right now.
[(Emphasis added).]
After further discussion, the trial judge stated she would like to "have some time to reflect on [the motion]" and asked to have the motion filed and served by the following day. Plaintiffs' counsel was not asked for his consent to this procedure and did not pose an objection. The court then proceeded to address plaintiffs' in limine motions. [***8]
[*468] Park's motion papers were filed on the fol-lowing day, April 1, 2013. In a sixteen-page brief, Park argued that plaintiffs' wrongful death claim should be dismissed with prejudice because their proofs of eco-nomic loss were "too speculative to present to a jury," that the claim for punitive damages should be dismissed
with prejudice, and that plaintiffs should be barred from presenting any evidence of pain and suffering by Cho because no survival claim had been pleaded. Finally, Park argued that if the requested relief were granted, no viable claim remained and the complaint should be dis-missed in its entirety with prejudice.
With exhibits, Park's submission was 260 pages long. Although there were some citations to the record included in the brief, the moving papers did not include a statement of material facts or otherwise conform to the requirements of Rule 4:46-2(a).
Plaintiffs' five-page opposition was filed and served by email on the same day, [**355] within hours of Park's filing. Plaintiffs cited N.J.S.A. 2A:31-5, which authorizes the jury to award
such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, togeth-er with the hospital, medical and funeral
expenses incurred [***9] for the de-
ceased, to the persons entitled to any in-testate personal property of the decedent.
[(Emphasis added).]
Plaintiffs noted that in addition to her contention that she anticipated financial support from Cho, Yunjin testi-fied she paid approximately $10,000 in funeral expenses. They argued further that the complaint could be fairly read to allege a survival action because Cho's sister, brother and fiancée were named as individual parties.
On the following day, the trial judge expressed her reluctance to consider the motion:
I received an email yesterday; I would say mid to late morning . . . a purported motion in limine seeking to dismiss plain-tiff's [sic] claim for punitive damages, wrongful death and preclude any refer-ence to pain and suffering as a survival claim, as they have not been pled.
Now, some Judges, and I've asked them, would not even consider your mo-tion, because it's not a motion in limine. I'm going to give you a chance to explain to me why I should even consider this, since this is something that could have been made [*469] as a motion for sum-mary judgment, as a motion to dismiss, at any time during the -- how many years has this case been pending?
233
Page 4 443 N.J. Super. 461, *; 129 A.3d 350, **;
2015 N.J. Super. LEXIS 214, ***
After counsel responded that [***10] the matter had been pending for three years, the court continued:
Three? Any time during those three years? Why am I getting it; as we have already come to trial, as -- you know, if it hadn't been for your . . . engagement yester-day. . . . [w]e would be engaged in trial. I mean [the pre-siding judge] was less than pleased that I wasn't pulling a jury on Monday. So, why, why should I consider this now? It's not really a motion in limine.
When Park's counsel insisted "it is absolutely a mo-tion in limine," the judge responded, "it's a motion in limine only because you brought it on the eve of trial." The explanation Park's counsel gave for the delay in fil-ing the motion was that there were several appeals to the Appellate Division and the Supreme Court, which de-prived the trial court of jurisdiction.3
3 As we have noted, the Supreme Court denied plaintiffs' motion for leave to appeal from the or-der barring the testimony of their economic ex-pert in December 2013. No other appellate activi-ty was identified.
After hearing oral argument, the trial judge issued a decision on the record, granting the motion and dismiss-ing all claims with prejudice. A motion for summary reconsideration was denied and this [***11] appeal fol-lowed.
In oral argument before this court, Park's counsel presented a different reason for the untimely filing of the motion to dismiss. He stated the motion was filed "at the last minute" because the attorney who had filed Park's earlier motion to bar the testimony of the economic ex-pert had left the law firm and trial counsel received the file to prepare for trial just prior to the weekend before trial. Although he admitted that the filing of the motions violated the Rules of Court, counsel maintained he was entitled to file a motion to dismiss the [**356] com-plaint at any time, even at trial. Counsel argued further that the order dismissing the complaint against Park should be affirmed because the complaint lacked merit. [*470] III.
Our Rules of Court provide explicit requirements for the timing of summary judgment motions, what must be presented in support of and in opposition to such mo-tions, and the standard for deciding them. R. 4:46-1, -2. There are, however, no rules that explicitly address mo-tions in limine.
The term "in limine" is taken from the Latin phrase, "at the outset." Black's Law Dictionary 791 (9th ed.
2009). The absence of any rule addressing what may properly be considered as a [***12] preliminary matter before trial commences has permitted the timing of the motion, rather than its subject matter, to pass for a defini-tion. However, whether a motion is correctly termed a motion in limine is not dictated by the fact it is brought literally on the threshold of trial. Black's defines a mo-tion in limine as "[a] pretrial request that certain inad-missible evidence not be referred to or offered at trial." Id. at 1109.4 Thus, it is anticipated that, as a general rule, a motion in limine will not have a dispositive impact on a litigant's entire case.
4 Arguably, defendant's motion to exclude evi-dence of Cho's pain and suffering because no survival claim had been pleaded, would fall with-in this description.
Even when a limited issue is presented, "[o]ur courts generally disfavor in limine rulings on evidence ques-tions," because the trial provides a superior context for the consideration of such issues. State v. Cordero, 438
N.J. Super. 472, 484-85, 105 A.3d 1129 (App.Div.2014), certif. denied, 221 N.J. 287, 112 A.3d 594 (2015). Alt-hough a trial judge "retains the discretion, in appropriate cases, to rule on the admissibility of evidence pre-trial," id. at 484, 105 A.3d 1129, we have cautioned that "[r]equests for such rulings should be granted only spar-ingly." Ibid. (quoting Bellardini v. Krikorian, 222 N.J.
Super. 457, 464, 537 A.2d 700 (App.Div.1988); see also Biunno, Weissbard & Zegas, Current N.J. Rules of
[***13] Evidence, comment 1 on N.J.R.E. 105 (2015). This is particularly true when the "motion in limine" seeks the exclusion of an expert's testimony, an objective that has the concomitant [*471] effect of rendering a plaintiff's claim futile. See Bellardini, supra, 222 N.J.
Super. at 463-64, 537 A.2d 700.
The fact that this misuse of the motion in limine oc-curs sufficiently often to win our notice, despite our re-peated cautions against such practice, leads us to con-clude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff's case or the sup-pression of a defendant's defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions.
Rule 4:46-1 states, "[a]ll motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown." In our view, the "unless other-wise ordered" language contemplates scheduling by the court, prior to trial, either sua sponte or upon a showing of good cause by the movant. However, even if the good-cause standard applies here,5 defendant failed to make a
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[**357] sufficient showing to justify consideration [***14] of his untimely motion.
5 Although we need not reach this issue on the facts before us, it would not be unreasonable to infer that defendant's request to have his untimely motion entertained at trial should be subject to an "extraordinary circumstances" standard. See
Klier, supra, 337 N.J. Super. at 85, 766 A.2d 761 (suggesting a summary dismissal at trial may be an appropriate exercise of discretion when the situation is "truly emergent" or "extraordinary").
Using language similar to Rule 4:46-1, Rule 4:24-2 identifies motions that must be made returnable before the expiration of the discovery period "unless on notice and motion, for good cause shown, the court otherwise permits." In Carbis Sales, Inc. v. Eisenberg, 397 N.J.
Super. 64, 80-82, 935 A.2d 1236 (App.Div.2007) (em-phasis added), we found the trial court did not abuse its discretion in denying a motion made at trial, and "grossly out of time," to compel discovery of a document where the moving party [*472] had knowledge of the docu-ment, failed to file a timely motion and offered no expla-nation for such failure.
Here, too, the documents relied upon by Park to support his motions were available for review long be-fore the time in which to file a summary judgment mo-tion expired. Defendant's stated reason that the court had lacked jurisdiction to entertain the motion fails to estab-lish good cause [***15] in light of the fact that appellate proceedings concluded more than three months before the trial date and did not preclude the filing of a timely motion. Similarly, the unexceptional departure of an as-sociate falls short of establishing good cause.
We also find no basis for the application of Rule
1:1-2, which generally permits the relaxation of a rule "if adherence to it would result in an injustice." "Rule 1:1-2 is the exception, rather than the norm," Romagnola v.
Gillespie, Inc., 194 N.J. 596, 604, 947 A.2d 646 (2008) (quoting State v. Williams, 184 N.J. 432, 442, 877 A.2d
1258 (2005)), and "should be sparingly resorted to, par-ticularly when a reasonable interpretation of the complex of directly applicable rules meets the problem at hand." Pressler and Verniero, Current N.J. Court Rules, com-ment 2 on R. 1:1-2 (2016); Romagnola, supra, 194 N.J.
at 604, 947 A.2d 646; Bender v. Adelson, 187 N.J. 411,
431, 901 A.2d 907 (2006). The "problem at hand" is the appropriate timing of dispositive motions. Rule 4:46 meets that problem, recognizing the "obvious" desirabil-ity of deciding such motions prior to trial and establish-ing requirements to accomplish that goal. Pressler & Verniero, supra, comment on R. 4:46-1.
It is, therefore, clear that the Rules of Court offer no legitimate path for the consideration of defendant's mo-tions on the day before jury selection. We therefore turn to the question whether the dismissal of the complaint based upon these motions deprived plaintiffs of due [***16] process of law. IV.
"Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe [*473] v. Poritz, 142 N.J. 1, 106, 662
A.2d 367 (1995); see Pelullo v. State, Comm'n of Investi-
gation, 294 N.J. Super. 336, 345, 683 A.2d 558
(App.Div.1996), certif. denied, 149 N.J. 35, 692 A.2d 48
(1997). "[W]hile the concepts of 'judicial administration' and fairness are not necessarily incompatible, the desire to facilitate judicial administration must take a back seat to our primary goal which is to adjudicate cases fairly and impartially." Klier, supra, 337 N.J. Super. at 83, 766
A.2d 761. "Our rules of court must be 'construed to se-cure a just determination, simplicity in procedure, fair-ness in administration and the elimination of unjustifia-ble expense and delay.'" Ibid. (quoting R. 1:1-2).
The summary judgment rules have been amended over the years to ensure those [**358] goals are real-ized. Prior to the amendment that became effective Janu-ary 1986, the timing of summary judgment motions was subject to Rule 1:6-3. Pressler & Verniero, supra, Histo-ry and Analysis of Rule Amendments to R. 4:46-1 (Gann Online Edition). The impetus for the amendment was the recognition it was "patently unfair to apply the time frames of R. 1:6-3(a), which give the respondent only 8
days in which to file and serve the response" when the movant was free from any time constraints. Pressler & Verniero, supra, comment on R. 4:46-1 (emphasis add-ed). To remedy this, the amendment afforded the re-spondent "approximately three weeks for response." Ibid.
[***17] The amendment also required summary judg-ment motions be "returnable no later than 30 days before trial" to implement the goal of resolving dispositive mo-tions prior to trial. Ibid. Trial judges were encouraged to decide summary judgment motions on a more timely basis by providing that adjournment requests be "liberal-ly granted" if the "disposition is not [communicated] at least 10 days prior to the scheduled trial date." Ibid. This change was made "[i]n recognition of counsel's need to know the disposition of the summary judgment motion in sufficient time to prepare for trial if the motion is denied or only partially granted." Ibid.
"Due process is not a fixed concept . . . but a flexible one that depends on the particular circumstances." Doe,
supra, 142 [*474] N.J. at 106, 662 A.2d 367. Therefore, we do not hold that the summary judgment rules estab-lish rigid requirements that must be met in every case for
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2015 N.J. Super. LEXIS 214, ***
due process demands to be satisfied. Still, the time re-quirements for the filing and decision of summary judg-ment motions provide a useful background for assessing whether plaintiffs had an opportunity to be heard at a meaningful time and in a meaningful manner.
In this case, the timing requirements of Rule 4:46-1 were violated in every respect. [***18] Notice of the motion came not thirty days before the trial date, but after the second trial date. Plaintiffs had less than one day to file their response. This was not only substantially less than the three weeks afforded them by Rule 4:46-1; it was even less than the "patently unfair" eight-day peri-od in effect prior to the rule's amendment. Finally, the decision here was rendered the day before jury selection, presumably after plaintiffs had expended some effort and expense to prepare for trial, rather than the ten days be-fore trial anticipated by the rule.6
6 The movant also failed to comply with the re-quirements of Rule 4:46-2(a), which are intended "to focus the parties' attention on the areas of ac-tual dispute" and "significantly facilitate the court's review." Pressler and Verniero, supra, comment 1 on R. 4:46-2. This failure put both the trial judge and plaintiffs at an unnecessary disad-vantage.
In Klier, the trial court afforded plaintiffs' attorney two days to produce his expert's report and argue against a motion for dismissal. 337 N.J. Super. at 84, 766 A.2d
761. Observing the "obvious" purpose of the summary judgment rules was "to afford the party against whom relief is sought notice of the application, together with a meaningful opportunity to respond," we concluded that [***19] two days was insufficient to cure the deficien-cies in the plaintiffs' opportunity to respond. Id. at 84-85,
766 A.2d 761. Accordingly, we held the plaintiffs had been deprived due process of law.
We reach the same conclusion here. Further, we ut-terly reject the argument that the dismissal should be affirmed, despite the [*475] violation of summary judgment rules, because plaintiffs suffered no prejudice in the dismissal of claims that lacked [**359] merit. The right to due process of law is not limited to worthy causes. However, we note that, because we conclude that these motions should not have been considered by the court, we express no opinion as to the merits of the mo-tions.
We are not insensitive to the pressures upon the court and litigants that may make it appear reasonable to disregard the requirements of the rules and sound the death knell to a litigant's case on the day of trial. Law-yers burdened with heavy caseloads may lack the height-ened focus to identify dispositive issues earlier. A litigant may be unable or unwilling to acknowledge weaknesses in his or her case. Trial judges may be sorely tempted to spare jurors the task of hearing a cause that appears to lack merit and turn to the demands of an unyielding [***20] calendar. Still, our commitment to the fair ad-ministration of justice demands that we protect a liti-gant's right to proceed to trial when he or she has not been afforded the opportunity to respond to dispositive motions at a meaningful time and in a meaningful man-ner. We therefore hold that, absent extraordinary circum-stances or the opposing party's consent, the consideration of an untimely summary judgment motion at trial and resulting dismissal of a complaint deprives a plaintiff of due process of law.
The order dismissing plaintiffs' complaint against defendant Park is reversed. We remand the matter for restoration to the trial calendar and leave further man-agement of the case to the discretion of the trial court.
236
----- Reprinted with permission of LexisNexis.
LISA R. WORTHY, Plaintiff-Appellant, v.
KENNEDY HEALTH SYSTEM; KENNEDY MEMORIAL HOSPITAL-CHERRY HILL; UNIVERSITY HEADACHE CENTER; MILLICENT KING-CHANNELL, D.O.; ROBERT F. HAHN, D.O.; COURTNEY BAKER, D.O.; SEAN HUBBARD, D.O.;
ANTHONY BABE, D.O.; STEPHANIE MARANO, R.N.; KRISTINE M. BROWN, R.N., and JOAN MAZZARELLA, R.N., Defendants, and JOSEPH P. CURRERI,1 D.O. and
THOMAS WETJEN, D.O., Defendants-Respondents.
1 The caption mistakenly listed defendant's surname as Currieri, which we have corrected in our opinion.
DOCKET NO. A-2698-14T1
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
446 N.J. Super. 71; 140 A.3d 584; 2016 N.J. Super. LEXIS 89
March 14, 2016, Submitted
June 22, 2016, Decided SUBSEQUENT HISTORY: [***1] Approved for Publication June 22, 2016. PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4906-08. COUNSEL: Messa & Associates, P.C., attorneys for appellant (Joseph L. Messa, Jr., and A. Christine
Giordano, on the briefs). Ronan, Tuzzio & Giannone, P.C., attorneys for respond-ent Joseph P. Curreri, D.O. (James M. Ronan, Jr., of counsel and on the briefs; Anthony M. Tracy, on the briefs). Blumberg & Wolk, LLC, attorneys for respondent Thom-as Wetjen, D.O. (Christopher M. Wolk and Jeffrey P.
Catalano, on the brief). JUDGES: Before Judges LIHOTZ, NUGENT and HIGBEE. The opinion of the court was delivered by LI-HOTZ, P.J.A.D. OPINION BY: LIHOTZ
OPINION
[**587] [*78] The opinion of the court was deliv-ered by
LIHOTZ, P.J.A.D.
Plaintiff Lisa R. Worthy filed this medical negli-gence matter, alleging various defendants failed to properly diagnose and treat her medical condition. On appeal, we examine whether plaintiff met the require-ments of Rule 4:26-4, the fictitious name rule, to save her claims against one defendant, which the trial judge dismissed as out of time. We also review proof support-ing causation regarding another defendant, who success-fully secured dismissal, arguing despite his alleged fail-ure to diagnose and treat [***2] plaintiff's condition she would not have experienced a better outcome.
More specifically, plaintiff appeals from two orders granting summary judgment dismissal in favor of two physician-defendants. The first is a June 2, 2011 order in favor of defendant Thomas Wetjen, D.O., finding all claims barred by the statute of limitations. The second is an April 11, 2014 order, concluding plaintiff failed to present evidence supporting proximate [**588] cause regarding the conduct of defendant Joseph P. Curreri,
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2016 N.J. Super. LEXIS 89, ***
D.O. On the date set to commence trial against the re-maining defendants, the parties resolved all claims. Plaintiff also appeals from the separate motions denying reconsideration of the summary judgment orders. Fol-lowing our review of the parties' arguments, in light of the record and applicable law, we reverse. [*79] I.
This matter arises from medical treatment and care plaintiff received in October 2006. We limit our recita-tion of facts and procedural history to the relevant issues presented on appeal.
Plaintiff, who had a history of migraine headaches and cervical disc disease, sought treatment from Robert Hahn, D.O. and defendant Millicent King-Channell, D.O. from September 17 to October 6, 2006. [***3] Despite various treatments, her ailments persisted. On the morning of October 6, 2006, plaintiff initially was treated by Dr. King-Channell, as a follow-up to her Sep-tember 29 appointment and then referred to defendant Robert F. Hahn, D.O. for pain management and neck manipulation. The same day plaintiff saw Dr. Hahn, who administered an injection and performed cervical spine manipulation therapy.
Following treatment, plaintiff took Xanax and Flexeril, which had been previously prescribed for her headaches, and went to work. After work, plaintiff and friends went to dinner, during which she consumed two beers and two glasses of wine. In the restaurant, plaintiff suffered "a syncopal episode," became semi-conscious, developed slurred speech, an abnormal gait and bilateral weakness. Emergency Medical Services were called and at 8:40 p.m., plaintiff was taken to Kennedy Memorial Hospital.
Upon arrival, an intake nurse performed an assess-ment and recorded plaintiff's report of a stabbing head-ache with nausea and vomiting. Plaintiff was coherent when answering questions, her eyes were open, and she obeyed commands; however, the nurse recorded symp-toms of generalized weaknesses throughout [***4] her body, which she attributed to the use of alcohol and Xanax.
At 9:16 p.m., plaintiff was evaluated by an emer-gency medicine physician. The physician was ultimately identified in 2010, more than two years after he provided treatment, as defendant Dr. Wetjen.
Dr. Wetjen's notes stated plaintiff arrived at the hos-pital by emergency medical services and was experienc-ing dizziness, nausea, [*80] and vomiting after consum-ing two glasses of wine, two beers, and taking Xanax and Flexeril. Dr. Wetjen observed plaintiff's pupils were sluggish as she followed commands and answered ques-
tions, but he concluded plaintiff's neurological examina-tion was otherwise unremarkable. Dr. Wetjen opined plaintiff suffered an accidental polydrug overdose.
At 12:40 a.m., on October 7, 2006, plaintiff was ad-ministered anti-nausea medication and a CT scan was performed, which proved negative. At 6:30 a.m., the intake nurse noted plaintiff had an unstable gait and was having difficulty walking. At 11:00 a.m., plaintiff was transferred to the telemetry unit. Upon arrival, Courtney Baker, D.O., a first-year Kennedy staff resident, con-ducted a physical examination and prepared a treatment plan for plaintiff, who was awake [***5] but "nonre-sponsive." Dr. Baker relied on the emergency room rec-ords and family members' statements to formulate plain-tiff's medical history. She diagnosed plaintiff with acci-dental polysubstance overdose.
Dr. Curreri first became involved when contacted by Dr. Baker, more than fifteen [**589] hours after plain-tiff arrived at the emergency room. After Dr. Baker dis-cussed plaintiff's condition, Dr. Curreri accepted plaintiff as his patient. He assumed responsibility for her at "around" noon on October 7, 2006. He assumed Dr. Baker obtained and reviewed the emergency room chart, which he did not review until noon on October 8, 2006. Dr. Curreri concluded plaintiff's condition was consistent with polysubstance overdose. He also ordered a neuro-logical consultation, which was not directed to be per-formed immediately, and prescribed aspirin.
Twenty-four hours later, Dr. Curreri examined plain-tiff. At that time, his diagnosis included: aspirational bronchitis, hypophosphatemia, hypokalemia and a pol-ysubstance overdose. He noted plaintiff's speech was incoherent, she was letheragic, and her mental status remained unchanged. Dr. Curreri asked the neurologist to examine plaintiff that day, which occurred. [***6]
Following a neurological consultation by defendant Sean Hubbard, D.O., plaintiff was transferred to Hahne-mann University [*81] Hospital, where an MRA and MRI revealed a narrowing of the right vertebral artery, bilateral subacute thalamic infarcts, and left cerebellar subacute infarct of the vertebral artery. In short, plaintiff suffered a stroke. A cerebral angiography revealed a non-occlusive dissection of the right vertebral artery at C1-C2, secondary to mild irregularity. After receiving treat-ment at various facilities, plaintiff was discharged home on November 4, 2006.
On September 26, 2008, plaintiff filed a complaint asserting medical negligence, alleging the negligent ma-nipulation of her neck caused vertebral artery dissection, a tear in an artery in the neck that supplies blood to the brain, which led to a stroke that was improperly diag-nosed and treated. She named as defendants not only Drs. Hahn and King-Channell, but also Kennedy Health
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2016 N.J. Super. LEXIS 89, ***
System (Kennedy), Kennedy Memorial Hospital -- Cher-ry Hill, Joseph P. Curreri, D.O., along with several other doctors and nurses involved with plaintiff's care whose specific identities were not determined because plaintiff was unable to decipher [***7] their signatures on certain medical reports.
The complaint, in place of a typed name, placed these defendants' signatures in the caption along with a fictitious party reference. As to each unknown profes-sional, his or her scanned undecipherable signature along with the identification of his or her title, i.e., doctor or nurse. Further, throughout the body of the complaint the signature is included when reciting factual underpinnings of alleged negligence for which plaintiff asserted his or her liability.
Kennedy accepted service on behalf of Kennedy Health System, Kennedy Memorial Hospital, and Steph-anie Marano, RN, but declined to accepted service on behalf of the remaining nine defendants. Returning the remaining summonses, Kennedy advised the named phy-sicians must be served through their offices. Specifically as to the unidentified defendants, Kennedy identified one intern and stated "[t]he remaining names and signatures were unidentifiable." Plaintiff's counsel requested Ken-nedy's legal liaison [*82] identify "the individuals who authored the medical records contained in [plaintiff's] chart." However, she was unable to do so.
On November 18, 2008, plaintiff wrote to Kennedy's legal liaison, [***8] stating:
You have refused to accept service of the [c]omplaints for several of the defend-ants. These defendants are identified with particularity in the [c]omplaint and are clearly agents, servants and/or employees of Kennedy Health System. The identity of these individuals is information that is in the sole possession, [**590] custody and control of Kennedy Health System. Therefore, any attempts by you to avoid service on these individuals is improper. As such, kindly accept service on behalf of your agents, servants, employees and identify the individuals who authored the medical records contained in [plaintiff]'s chart.
On November 16, 2009, plaintiff served twelve sup-plemental interrogatories directing Kennedy and the oth-er defendants to provide the identity and job title of each of the six defendants designated by their signature in the complaint, which again was reproduced in the discovery
request. When no response was forthcoming by January 19, 2010, additional correspondence renewed the request and sought voluntary compliance in an effort to avoid motion practice. Kennedy "informal[ly]" responded on February 17, 2010, stating "despite good faith efforts" it could not identify three of the treatment providers, but noted [***9] their job titles. Two signatures were identi-fied and no information was provided regarding the re-maining signature. Plaintiff moved to strike Kennedy's answer and defenses for failure to provide discovery, returnable on March 5, 2010.
On March 3, 2010, Kennedy sent a second "informal response" to plaintiff's supplemental interrogatories. It addressed the one signature not mentioned in its prior response, stating the document on which the signature appeared was not generated by Kennedy, but was be-lieved to be from a provider rendering treatment prior to plaintiff's admission to Kennedy. Kennedy provided the identifications of Dr. Wetjen, a resident physician and three nurses. Within a week, plaintiff sought leave to amend the complaint, specifically substituting the names and titles for the scanned signatures of defendants as revealed by Kennedy, which [*83] was granted. Plain-tiff also moved to restore the now identified defendants to the active trial status, which was also granted.2
2 The record also references plaintiff "had to seek court intervention so that a witness could be produced [by Kennedy] to identify signatures of the remaining defendants in the case." The desig-nated witness, deposed [***10] on May 14, 2010, identified Dr. Wetjen's signature. These pleadings are not in the record.
Dr. Wetjen answered the complaint on November 24, 2010, and, thereafter, moved for summary judgment, arguing plaintiff's claim was barred by the statute of limi-tations and the improper use of the fictitious party plead-ing rule did not save her complaint from being untimely filed. After oral argument, the trial judge granted Dr. Wetjen's motion on June 2, 2011.
Focusing on the absence of efforts to identify the de-fendants prior to October 6, 2008, the trial judge rejected plaintiff's contention the inclusion of defendants' signa-tures sufficiently preserved her claims, making them timely. Although finding no prejudice to Dr. Wetjen, the judge noted plaintiff exercised no due diligence to ascer-tain Dr. Wetjen's identity prior to initiating her legal ac-tion and, therefore, he rejected reliance on the fictitious name procedure. Finally, the judge was unpersuaded by plaintiff's alternative argument to apply the discovery rule, delaying commencement of the statute of limita-tions to August 6, 2008, the date plaintiff first consulted counsel, finding the assertion unsupported.
239
Page 4 446 N.J. Super. 71, *; 140 A.3d 584, **;
2016 N.J. Super. LEXIS 89, ***
The June 2, 2011 order dismissed [***11] the com-plaint as to Dr. Wetjen, with prejudice. Reconsideration was denied.3
3 The orders entered on July 22, 2011 cause some confusion. First, a July 22 order dismissed the complaint against Dr. Wetjen with prejudice. A second order denied plaintiff's motion for re-consideration of the summary judgment dismis-sal. A July 28, 2011 order prepared by the court simply states, "The [o]rder signed on July 22, 2011 in regard [to] the above captioned matter referencing Thomas Wetjen, DO is hereby vacat-ed." Finally an order, which has an illegible date and no file stamp, presumably entered on August 5, 2011, denied reconsideration of the summary judgment dismissal of Dr. Wetjen. Notwithstand-ing the confusion created by these orders, plain-tiff does not dispute summary judgment was granted in favor of Dr. Wetjen, who was dis-missed from the case.
[**591] [*84] On March 13, 2014, Dr. Curreri moved for summary judgment. He argued plaintiff failed to establish his conduct was a proximate cause of or a substantial contributing factor to plaintiff's injuries. Dr. Curreri maintained "plaintiff had not submitted sufficient expert proofs to establish that there was treatment avail-able as of . . . noon on October 7, 2006, (the time [***12] when Dr. Curreri first became involved in the care of plaintiff), that could have improved or otherwise changed the ultimate outcome in some material respect." Because plaintiff's expert identified noon on October 7, 2006 as a critical time period for necessary treatment to be administered, and Dr. Curreri actually saw plaintiff after that time on October 7, 2006, he argued had he ad-ministered any treatments as asserted by plaintiff, the final outcome would not have changed.
In response, plaintiff refuted the factual assertions, noting testimony from Dr. Baker stated she called Dr. Curreri after plaintiff's admission on the evening of Oc-tober 6, 2006 to discuss a treatment plan, which he ap-proved. Dr. Baker again consulted with Dr. Curreri by telephone when she resumed her shift at 7 a.m. on Octo-ber 7, 2006. Dr. Curreri suggests the call was not made until noon on that date.
The trial judge concluded Dr. Curreri had no contact with plaintiff until sometime after noon on October 7, 2006, stating:
I don't see facts in dispute on that point, and that point being when Dr. Curreri came into contact with the patient. I find based on what is . . . in the evidence from the testimony of the parties, [***13] [Dr.
Baker], as well as Dr. Curreri and the notes, his contact and his laying out a plan for the care of . . . [plaintiff] . . . that all attaches at . . . noon . . . timeframe on the 7th.
And it's clear that the testimony from [plaintiff's expert] is that the potential op-tions with respect to a patient of this na-ture at that point in time would have been the heparin treatment. . . . And he cannot give an opinion that there would have been a better outcome had[,] at that point in time[,] Dr. Curreri ordered heparin treatment. And without that in the record, I can't hold the doctor in. So I'm going to grant summary judgment as to Dr. Curre-ri.
Reconsideration was denied.
Plaintiff appealed from the June 2 and August 5, 2011 orders dismissing all claims against Dr. Wetjen. She subsequently [*85] amended the notice of appeal to include the April 11 and May 23, 2014 orders dismissing all claims against Dr. Curreri. II.
We "review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38, 84 A.3d 583
(2014). See also Townsend v. Pierre, 221 N.J. 36, 59,
110 A.3d 52 (2015). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the [***14] moving party is entitled to summary judgment as a matter of law." Bhagat, supra,
217 N.J. at 38, 84 A.3d 583. See Brill v. Guardian
[**592] Life Ins. Co. of Am., 142 N.J. 520, 540, 666
A.2d 146 (1995); R. 4:46-2(c).
Further, all facts are viewed in a light most favorable to the non-moving party, "keeping in mind '[a]n issue of fact is genuine only if, considering the burden of persua-sion at trial, the evidence submitted by the parties on the motion . . . would require submission of the issue to the trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 442 N.J.
Super. 346, 366, 123 A.3d 272 (App. Div. 2015) (altera-tion in original) (quoting R. 4:46-2(c)), certif. denied, 224 N.J. 124, 129 A.3d 330 (2016).
A motion for summary judgment will not be defeat-ed by bare conclusions lacking factual support, Petersen
v. Twp. of Raritan, 418 N.J. Super. 125, 132, 12 A.3d
250 (App. Div. 2011), self-serving statements, Heyert v.
Taddese, 431 N.J. Super. 388, 413-14, 70 A.3d 681 (App.
240
Page 5 446 N.J. Super. 71, *; 140 A.3d 584, **;
2016 N.J. Super. LEXIS 89, ***
Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 (2016). "It is evidence that must be relied upon to establish a genuine issue of fact. 'Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments.'" Cortez v.
Gindhart, 435 N.J. Super. 589, 605, 90 A.3d 653 (App.
Div. 2014) (quoting Hoffman v. Asseenontv.Com, [*86] Inc., 404 N.J. Super. 415, 425-26, 962 A.2d 532 (App.
Div. 2009)), certif. denied, 220 N.J. 269, 105 A.3d 1102
(2015).
"The practical effect of this rule is that neither the motion court nor an appellate court can ignore the ele-ments of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J.
at 38, 84 A.3d 583. It is only "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court [***15] should not hesitate to grant sum-mary judgment." Brill, supra, 142 N.J. at 540, 666 A.2d
146 (citation omitted) (quoting Anderson v. Liberty Lob-
by, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L.
Ed. 2d 202, 214 (1986)).
Once we agree no genuinely disputed fact exists, we "then decide whether the trial court's ruling on the law was correct." W.J.A. v. D.A., 210 N.J. 229, 238, 43 A.3d
1148 (2012) (quoting Henry v. New Jersey Dept. of Hu-
man Services, 204 N.J. 320, 330, 9 A.3d 882 (2010)). Such a determination is "not entitled to any special def-erence," and is subject to de novo review. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378, 658 A.2d 1230 (1995). III.
We separately review plaintiff's challenge to the two summary judgment orders. A.
As to Dr. Wetjen, plaintiff initially argues her com-plaint was timely filed under the discovery rule. She maintains a material factual dispute exists whether the two-year statute of limitations for medical negligence cases, N.J.S.A. 2A:14-2(a), was tolled because she did not discover the right to legal recourse until she spoke to counsel on August 6, 2008. We disagree.
"Under special circumstances and in the interest of justice, [New Jersey has] adopted the discovery rule to postpone the [*87] accrual of a cause of action when a plaintiff does not and cannot know the facts that consti-tute an actionable claim." Grunwald v. Bronkesh, 131
N.J. 483, 492, 621 A.2d 459 (1993); see also Baird v.
Am. Med. Optics, 155 N.J. 54, 65, 713 A.2d 1019 (1998) ("The discovery rule delays the accrual of a cause of ac-tion until 'the injured party discovers, or by an exercise
of reasonable diligence and intelligence should have dis-covered that he may have a basis [***16] [**593] for an actionable claim.'" (quoting Lopez v. Swyer, 62 N.J.
267, 272, 300 A.2d 563 (1973))).
"The discovery rule is a rule of equity that amelio-rates 'the often harsh and unjust results [that] flow from a rigid and automatic adherence to a strict rule of law.'" Grunwald, supra, 131 N.J. at 492, 621 A.2d 459 (altera-tion in original) (quoting Lopez, supra, 62 N.J. at 273-
74, 300 A.2d 563). "The question is whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another." Martinez v. Cooper Hosp.-Univ. Med.
Ctr., 163 N.J. 45, 52, 747 A.2d 266 (2000). A plaintiff bears the burden of proving he or she was aware of an injury and "that the injury [was] attributable to the fault of another." Id. at 53, 747 A.2d 266. However, a plaintiff who merely lacks "knowledge of a specific basis for le-gal liability or a provable cause of action" may not re-ceive the benefit of the discovery rule. Id. at 52, 747
A.2d 266.
Certainly plaintiff knew she suffered a stroke in Oc-tober 2006. Nothing suggests she was misled regarding her diagnosis or the nature of her care. Lynch v. Rubacky,
85 N.J. 65, 67-69, 77, 424 A.2d 1169 (1981). In fact, her certification only reflects she discovered she could pur-sue legal redress after she met with her attorney, not that she was unaware of her injury. Szczuvelek v. Harborside
Healthcare Woods Edge, 182 N.J. 275, 280, 283, 865
A.2d 636 (2005). "To accept the premise that the statute did not begin to run until she was advised by her attorney . . . would be to disregard the basic policy of repose, which underlies [***17] the statute of limitations, thus extending the threat of litigation indefinitely." Rankin v.
Sowinski, 119 N.J. Super. 393, 401, 291 A.2d 849 (App.
[*88] Div. 1972). As a result, we conclude the discovery rule does not apply.
However, we find compelling plaintiff's argument she properly complied with the fictitious pleading rule, allowing the cause of action against Dr. Wetjen to relate back to the date her complaint was filed, which was within two years of her injury.
Pursuant to Rule 4:26-4, "if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description suffi-cient for identification." "The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know that defendant's identity." Gallagher
v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485,
492, 723 A.2d 1256 (App. Div. 1999), aff'd, 163 N.J. 38,
747 A.2d 262 (2000). The rule's effect is to "render time-
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ly the complaint filed by a diligent plaintiff, who is aware of a cause of action against an identified defendant but does not know the defendant's name." Greczyn v.
Colgate-Palmolive, 183 N.J. 5, 11, 869 A.2d 866 (2005). When the plaintiff discovers the party's name, "amend-ment of the complaint may relate back [to] allow an ac-tion otherwise time-barred." Brown v. Kennedy Mem'l
Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579, 587, 711
A.2d 1370 (App. Div.), certif. denied, 156 N.J. 426, 719
A.2d 1025 (1998). Accordingly, if a defendant [***18] is properly identified by a fictitious name before expira-tion of the applicable limitations period, an amended complaint substituting a fictitiously named defendant's true name will relate back to the date of filing of the original complaint. Viviano v. CBS, Inc., 101 N.J. 538,
548, 503 A.2d 296 (1986); Farrell v. Votator Div. of
Chemetron Corp., 62 N.J. 111, 120-23, 299 A.2d 394
(1973); see also R. 4:9-3 [**594] (allowing an amended complaint to relate back to the initial complaint).
The trial judge heavily relied on the principle that "[t]he identification of a defendant by a fictitious name . . . may be used [*89] only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint." Claypotch v. Heller, Inc.,
360 N.J. Super. 472, 479-80, 823 A.2d 844 (App. Div.
2003) (citing Mears v. Sandoz Pharms. Inc., 300 N.J.
Super. 622, 631-33, 693 A.2d 558 (App. Div. 1997)). This requires a plaintiff to proceed with due diligence in ascertaining the fictitiously identified defendant's true name. Farrell, supra, 62 N.J. at 120, 299 A.2d 394; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super.
203, 208, 740 A.2d 1122 (App. Div. 1999).
Here, the judge had difficulty accepting the use of signatures to identify the unknown professionals. He correctly noted no specific authority allowed a party to paste a signature in lieu of naming a party in the caption. Had plaintiff done nothing more, we might easily reject such a practice. However, fundamental fairness demands consideration of the totality of the facts and circumstanc-es before the ultimate sanction of dismissal with preju-dice issues. Following such a review, we conclude [***19] these facts support counsel undertook the re-quired diligent inquiry.
The complaint did much more than simply include the pasted signatures in the caption. Plaintiff utilized the information available from Kennedy's records and identi-fied not only the professional's title, but also recited the factual basis for liability. She further included the more traditionally found John and Jane Doe references and a separate count for those defendants. These efforts were designed to relate as much known information as possi-ble to specify the unidentified professionals.
Regarding diligence, while Dr. Wetjen was not iden-tified before the complaint was filed, this was not be-cause counsel was dilatory. The facts show plaintiff first understood she had a right to file an action when she met with counsel on August 6, 2008, very near the expiration of the statute of limitations. Counsel proceeded to gather Kennedy's records, obtain an affidavit of merit and file a complaint in less than two months. From that point, Kennedy was repeatedly asked formally and informally to identify the "agents, servants, [or] employees" who signed its charts. Letters, [*90] discovery requests and motions to produce a witness to [***20] identify the signatures were issued. For the most part, Kennedy ig-nored the requests, despite the fact it exclusively con-trolled the pertinent information, at all times. Kennedy did not release identification information until the return date of plaintiff's motion to strike Kennedy's answer and defenses approached. Only then did Kennedy issue an "informal response" to plaintiff's supplemental interroga-tories. Had Kennedy responded when plaintiff first asked, Dr. Wetjen would have been identified and served within a week of the original filing.
Unlike the authority relied upon by Dr. Wetjen, see
Johnston, 326 N.J. Super. at 205, 740 A.2d 1122 (de-scribing how the plaintiff did not seek to add the newly identified party after waiting almost a year once identi-fied), here, plaintiff moved to amend her complaint with-in days of learning Dr. Wetjen's identity.
Nor can we conclude plaintiff failed to investigate potential claims against a physician whose name ap-peared multiple times in her medical chart. See Matynska
v. Fried, 175 N.J. 51, 54, 811 A.2d 456 (2002) (denying application of equitable tolling principles when infor-mation was readily [**595] available). In this matter, the names were not easily obtained from the medical records and Kennedy was not forthcoming in providing actual identifications. [***21]
Perhaps most importantly, Dr. Wetjen was not prej-udiced by the delay in formal identification as a poten-tially liable party and the ultimate service of an amended complaint. Farrell, supra, 62 N.J. at 122-23, 299 A.2d
394. Nothing impaired his ability to defend the action. Mears, supra, 300 N.J. Super. at 631, 693 A.2d 558.
"Justice impels strongly towards affording the plain-tiff[] [her] day in court on the merits" of her claims. Far-
rell, supra, 62 N.J. at 122, 299 A.2d 394; see also Fede
v. Clara Maass Hosp., 221 N.J. Super. 329, 339, 534
A.2d 443 (Law Div. 1987) (stating a motion to dismiss on statute-of-limitations grounds in the context of fictitious party practice is governed by "the interests of justice.").
[*91] Following our review, we conclude plaintiff engaged in diligent efforts, which were continually thwarted by Kennedy. For more than fifteen months,
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Kennedy declined to provide the requested identification of the doctors and nurses who attended to plaintiff in its facility, as confirmed by their signatures on charts, rec-ords and reports. The delay here falls squarely on Ken-nedy's gradual response, which fairness dictates shall not be shouldered by plaintiff. The motion judge's findings to the contrary are not supported. The decision to dismiss Dr. Wetjen is reversed and the June 2 and August 5, 2011 orders are vacated. B.
We turn to the order granting summary judgment to Dr. Curreri. Among the claims [***22] stated in her complaint, plaintiff alleges Dr. Curreri failed to diag-nose, order diagnostic testing and treat her stroke, misdi-agnosed her condition, and failed to alter treatment de-spite her failure to improve for more than seventeen hours. The motion judge found plaintiff's expert "c[ould] not give an opinion that there would have been a better outcome had at that point in time Dr. Curreri ordered heparin treatment." Plaintiff argues this was an abuse of discretion because materially disputed facts were pre-sented to support causation that would defeat summary judgment.
"A medical malpractice case is a kind of tort action in which the traditional negligence elements are refined to reflect the professional setting of a physician-patient relationship." Verdicchio v. Ricca, 179 N.J. 1, 23, 843
A.2d 1042 (2004). To establish a prima facie case for medical negligence, "a plaintiff must present expert tes-timony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury[.]" Koseoglu v.
Wry, 431 N.J. Super. 140, 156, 67 A.3d 646 (App. Div.
2013) (alteration in original) (quoting Gardner v.
Pawliw, 150 N.J. 359, 375, 696 A.2d 599 (1997)), certif.
denied, 216 N.J. 4, 75 A.3d 1159 (2013).
[*92] Under certain circumstances, a plaintiff "must prove that, as a result of a defendant's negligence, she experienced an increased risk of [***23] harm from that condition, and that the increased risk of harm was a substantial factor in causing the injury ultimately sus-tained." Gardner, supra, 150 N.J. at 375, 696 A.2d 599 (citing Anderson v. Picciotti, 144 N.J. 195, 210, 676 A.2d
127 (1996)).
The substantial factor test allows the plaintiff to submit to the jury not whether "but for" defendant's negligence the injury would not have occurred[,] but "whether the defendant's deviation from standard medical practice increased a patient's risk of harm or diminished a [**596] pa-tient's chance of survival and whether
such increased risk was a substantial fac-tor in producing the ultimate harm." [Gardner, supra, 150 N.J. at 376, 696
A.2d 599]. Once the plaintiff demonstrates that the defendant's negligence actually increased the risk of an injury that later occurs, that conduct is deemed to be a cause "in fact" of the injury and the jury must then determine the proximate cause question: whether the increased risk was a substantial factor in bringing about the harm that occurred.
[Verdicchio, supra, 179 N.J. at 24,
843 A.2d 1042.]
Plaintiff maintains her symptoms evident upon ad-mission, including her eyes gazing to the right, suggested a need for a neurological consultation. However, Dr. Curreri did not examine plaintiff for twenty-four hours after she was admitted to his service, and the neurologi-cal exam, although ordered, was not deemed urgent [***24] and was further delayed.
Plaintiff's expert Louis R. Caplan, M.D. stated there was a need to consider a differentiated diagnosis before concluding plaintiff suffered a polysubstance overdose. In his report, he opined treating physicians ignored plain-tiff's symptoms as suggesting the more serious condition, stating:
If Dr. Hubbard and the other healthcare providers at Kennedy Memorial Hospital involved in [plaintiff]'s care and treatment had identified that this was a neurologic emergency then [plaintiff] would have been considered for thrombolytic and or anticoagulant treatment. As a result of the negligence of the defendants, [plaintiff] has permanent neurological injuries[,] which could have been prevented had the defendants acted within the standard of care.
In his deposition testimony, Dr. Caplan reiterated that no tests to determine whether plaintiff suffered a neurological event were performed. Consequently, be-cause "no adequate investigation [and] no adequate dif-ferential diagnosis" was performed, no treatment [*93] was administered. He also identified other investigative procedures aiding a differentiated neurological diagnosis, such as an MRI or MRA, would lead to a course of treatment. [***25] Moreover, if the attending physician
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was not trained in the area at issue, he or she was obli-gated to call a trained and experienced neurologist to assist in the diagnosis.
Both the trial judge and Dr. Curreri rely on this col-loquy as demonstrating lack of causation:
[DR. CURRERI'S COUNSEL]: If Hep-arin had been administered to this patient by 12:00 noon on October 7, can you state an opinion that this patient's outcome probably would have been better.
[DR. CAPLAN]: No. However, important to any analysis is the remainder of Dr. Caplan's testimony, as follows:
Q. If heparin had been administered by 12:00 noon on October 7, am I correct that you cannot, therefore, state that the failure to give heparin by 12:00 noon on October 7, was a substantial factor in in-creasing the risk and harm to this patient?
. . . .
A. No, I don't think that necessarily follows. You asked me if she'd been given it at 12:00 noon. I can't say that would have . . . made a difference. It depends on when it was given whether it was more likely than not that it would have been helpful. But that would cover the time pe-riod between when she came into the hos-pital and 12:00 noon the next day. That's the point at issue.
. . [***26] . .
[**597] Q. If heparin had been giv-en at any point between 11:00 p.m. on the 6th and 12:00 noon on October 7, can you state the opinion that the patient's out-come probably would have been better?
A. The difficulty in answering the question -- I'd say this: I can't answer yes or no. The reason I can't is we have inad-equate information. So it would depend on what the findings were. As I said, we don't have really a good detailed neuro-logical full examination early. We don't have one really later. So I'm saying that I think she got worse, but that's a little hard to be absolutely certain. We don't have an imaging test. So we don't know if the im-aging changed. And we don't know when it would have been given.
So the answer is it would have given her more chance depending on what the findings were. Now, we don't know the findings. So I can't really answer the ques-tion. I can't answer yes or no. I think it might have given her more of a chance if it was given at the appropriate time after the appropriate imaging was done depend-ing on what the findings were.
When asked whether a decision to administer hepa-rin at noon on October 7 would have complied with the standard of care, Dr. [*94] Caplan stated it would [***27] have made a difference and would have com-plied with the standard of care.
Other facts also impact this issue. Dr. Baker, a Ken-nedy staff intern who treated plaintiff following her ad-mission to the hospital, contacted Dr. Curreri to accept plaintiff as his patient. Dr. Baker's memory of events is poor, but her hospital notes record certain symptoms that prompted a neurological consultation. Yet, Dr. Curreri did not order an expedited consultation, causing its per-formance to be delayed for more than twenty-four hours. Dr. Curreri accepted Dr. Baker's diagnosis. However, he agreed if any evaluation does not consider a diagnosis, tests would not be initially ordered. Dr. Curreri acknowl-edged he did not consider an alternate neurological diag-nosis and, therefore, did not order additional testing.
Viewing this record, in a light most favorable to plaintiff as we must, we conclude the facts, including the expert opinion, could support a finding Dr. Curreri devi-ated from the accepted standard of care in failing to de-velop a differentiated neurological diagnosis and, there-fore, pursue an alternative course of medical treatment, which was a substantial factor in contributing to the inju-ries plaintiff [***28] sustained. Gardner, supra, 150
N.J. at 375, 696 A.2d 599.
The trial judge concluded Dr. Caplan did not assert "there would have been a better outcome had[,] at that point in time[,] Dr. Curreri ordered heparin treatment." (Emphasis added). However, this is not the legal stand-ard. "The substantial factor test of causation requires the jury to determine whether the deviation, in the context of the patient's preexistent condition, was sufficiently sig-nificant in relation to the eventual harm to satisfy the requirement of proximate cause." Roses v. Feldman, 257
N.J. Super. 214, 218, 608 A.2d 383 (App. Div. 1992) (quoting Battenfeld v. Gregory, 247 N.J. Super. 538,
546-47, 589 A.2d 1059 (App. Div. 1991)). It then "be-comes a jury question whether or not that increased risk constituted a substantial factor in producing the injury."
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Id. at 217, 608 A.2d 383 (quoting Battenfeld, supra, 247
N.J. Super. at 546-47).
[*95] The motion judge's conclusion considered only a portion of Dr. Caplan's factual testimony. The expert opined had Dr. Curreri acted when first advised of [**598] plaintiff's condition, although he could "not be certain" because no testing was performed, he believed "it would have given her more of a chance . . . depending on what the findings were." Accordingly, the jury must determine whether Dr. Curreri's conduct was a substan-tial factor in causing plaintiff's damages. Put another way, "plaintiff's claim . . . from delayed diagnosis and treatment will not [***29] be diminished or defeated by a demonstration that delay itself was not the cause of her ultimate physical injury." Evers v. Dollinger, 95 N.J.
399, 411, 471 A.2d 405 (1984). The judge's erroneous analysis must be reversed and summary judgment dis-missal vacated. IV.
In conclusion, we affirm the rejection of the discov-ery rule as applicable here, but reverse the summary judgment dismissal of claims against Dr. Wetjen, finding plaintiff's timely complaint properly utilized the fictitious party procedure. Plaintiff diligently pursued the identity of Dr. Wetjen and promptly amended her pleadings when Kennedy finally complied with discovery requests. Fur-ther, the judge improperly granted summary judgment, dismissing Dr. Curreri. Not only did the judge overlook evidence of causation provided by plaintiff's expert, he employed the incorrect legal standard when assessing the facts.
Accordingly, we reverse the June 2, 2011 and April 11, 2014 summary judgment orders, as well as the orders denying reconsideration. The matter is remanded for further proceedings.
Reversed and remanded.
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About the Panelists… William L. Brennan, The Law Office of William L. Brennan in Shrewsbury, New Jersey, has been primarily engaged in litigation involving personal injury, medical malpractice, products liability and complex multi-party construction claims. He has served as regional trial counsel for several national corporations and has tried cases throughout the country, and his prosecutorial experience has enabled him to successfully represent individuals accused of white collar offenses on the federal level. He accepted a position as the Chief Litigation Officer for NJ Pure Insurance and CURE Insurance, and now exclusively handles medical malpractice defense. Admitted to practice in New Jersey and New York, and before the United States District Court for the District of New Jersey, and the Southern and Eastern Districts of New York, Mr. Brennan has been a member of the American and New Jersey State Bar Associations, the New Jersey Defense Association and The Voice of the Defense Bar (DRI). He has served as Presiding Municipal Judge for the Town of Westfield, as Borough Councilman in the Town of Rutherford and as Police Commissioner. Mr. Brennan has been a guest commentator on Court TV. He has also served as an Adjunct Professor at Seton Hall University, where he has taught media law. Mr. Brennan received his undergraduate degree, with honors, from Seton Hall University and his J.D. from Fordham University School of Law. Paul M. da Costa, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is a Partner in Snyder Sarno D’Aniello Maceri & da Costa LLC with offices in Roseland, Bridgewater and Hackensack, New Jersey. Head of the firm’s Medical Malpractice and Personal Injury Department, he focuses his practice in medical malpractice, products liability, mass torts and catastrophic personal injury cases. He also has experience in handling cases involving sexual tort claims against religious institutions and mental health professionals. Mr. da Costa is admitted to practice in New Jersey and the District of Columbia, and before the United States District Court for the District of New Jersey and the Third Circuit Court of Appeals. A member of the Board of Governors of the New Jersey Association for Justice (NJAJ) and the Association’s Civil Practice Committee, he was appointed to the New Jersey State Bar Association’s Medical Malpractice Special Committee and is a former member of the New Jersey Supreme Court District V-A Ethics Committee. He is the recipient of several honors. Mr. da Costa received his B.A. from Rutgers College and his J.D.-M.A.D.I.R. from Seton Hall University, a collaboration of the School of Law and John C. Whitehead School of Diplomacy and International Relations. He has successfully completed the trial advocacy institute administered by the National Trial Advocacy College at the University of Virginia School of Law. Michael A. Ferrara, Jr., Certified as a Civil Trial Attorney by the Supreme Court of New Jersey and as a Trial Advocate by the National Board of Trial Advocates, heads The Ferrara Law Firm, LLC in Cherry Hill, New Jersey. He represents clients who have been harmed by defective products, defective drugs, medical and nursing home malpractice, bad drivers, construction site
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injuries and automobile, bus or tractor trailer incidents. He also handles general civil litigation and arbitration, and in his 40 years of practice has tried more than 250 jury trials. Mr. Ferrara is admitted to practice in New Jersey and Pennsylvania, and before the United States District Court for the District of New Jersey and the Eastern District of Pennsylvania, the Third Circuit Court of Appeals and the United States Supreme Court. The founder and former Chair of the Association of Trial Attorneys of America–New Jersey Legal PAC, he is Past President of the Association of Trial Attorneys of America–New Jersey, a Fellow of the American Board of Trial Advocates (ABOTA) and a past President of the New Jersey Chapter. Mr. Ferrara is a member of the Million Dollar Advocates Forum, a past President and Trustee of the Civil Justice Foundation, and Past Chair of the New Jersey State Bar Association Medical Malpractice Committee. He was invited to become a Fellow of the International Academy of Trial Lawyers, has served on the Federal Judicial Selection Advisory Committees for four New Jersey Senators and was appointed to the Burlington County Judicial and Prosecutorial Selection Committee. A Master of the Camden American Inns of Court, Mr. Ferrara is the recipient of the Gold Medal for Distinguished Achievement from ATLA-NJ and the Trial Bar Award from the Trial Attorneys of New Jersey. He has lectured for ICLE, the American Association for Justice, the National College of Trial Advocacy, the Practicing Law Institute and a number of state trial lawyer organizations. Mr. Ferrara received his B.S. from Villanova University and his J.D. from the University of San Diego School of Law, where he was on the Board of Visitors. He is a former Lieutenant in the United States Navy and attended the Naval Officers Submarine School. Alexis Aloi Graziano is an associate with Buchanan Ingersoll & Rooney PC in Princeton, New Jersey. She concentrates her practice in long-term care litigation, particularly in the areas of premises liability and medical malpractice defense. Admitted to practice in New Jersey and Pennsylvania, and before the United States District Court for the District of New Jersey and the Middle District of Pennsylvania, Ms. Graziano is a member of the American Health Lawyers Association; Philadelphia Volunteer Lawyers for the Arts; and Business on Board, Arts and Business Council of Greater Philadelphia. She has served as a Mock Trial Coach for the Bishop Eustace Preparatory School and the Ocean City High School. Ms. Graziano received her B.A., summa cum laude, from Loyola University and her J.D. from Villanova University School of Law. She served as a Judicial extern for the Honorable Marie E. Lihotz, Superior Court of New Jersey, Appellate Division, and was a law clerk to the Honorable Kyran Connor, Superior Court of New Jersey, Criminal Division. Honorable John E. Harrington, P.J.Cv. has been assigned to the Law Division of Burlington County, is Presiding Judge of the Civil Division and sits in Mount Holly, New Jersey. Former Supervising Judge of the Special Civil Part, he is the Complex Business Litigation and Environmental Judge for Burlington County and has also served in the Family Division. A member of the New Jersey State and Burlington County Bar Associations, Judge Harrington has been a member of the Supreme Court Committee on Special Civil Part Practice. He has lectured for several ICLE courses.
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Judge Harrington is a graduate of Fairfield University and Rutgers University School of Law-Camden. While at Rutgers, he was an editor of the Rutgers-Camden Law Journal. Jonathan H. Lomurro is a Partner in Lomurro Munson Comer Brown & Schottland, LLC with offices in Freehold, Toms River and East Brunswick, New Jersey. He is a member of the firm’s General Practice Group and concentrates his practice in personal injury, property damage claims, entertainment law, municipal law, trademark and copyright issues and criminal law. He has represented clients in a variety of criminal, municipal and civil matters, and has been appointed as Public Defender for Howell Township and Freehold Borough. Mr. Lomurro is admitted to practice in New Jersey and before the United States District Court for the District of New Jersey. Chair of the New Jersey State Bar Association Medical Malpractice Committee, he has been a member of the American and Monmouth Bar Associations, the Association of Criminal Defense Lawyers of New Jersey, the Association of Trial Lawyers of America, the Haydn Proctor American Inn of Court and the American Society of Composers, Authors, and Publishers (ASCAP). Mr. Lomurro was elected to serve as the District Representative to the ABA for the Executive Committee of the New Jersey State Young Lawyers Division, has been appointed to a three-year term of service on the Monmouth County Young Lawyers Committee and has served on the Monmouth County Juvenile Law Committee. A published author, he has lectured for ICLE, the American Bar Association, the Young Lawyers Division of the New Jersey State Bar Association and other organizations. Mr. Lomurro received his B.A. from Rutgers University, his J.D. from Widener University School of Law and his LL.M. in Trial Advocacy from Temple University Beasley School of Law, where he was a Magister in the Harrington Inn of the International Fraternity of Phi Delta Phi. Peter L. MacIsaac, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is a Partner in Chasan Leyner & Lamparello, P.C. in Secaucus, New Jersey, and Chair of the firm’s Personal Injury/Medical Malpractice Department. Recognized as one of the leading medical malpractice and catastrophic injury attorneys in New Jersey, he concentrates his practice in helping patients who have been harmed by preventable medical errors and representing victims of general negligence, including those injured by driver error, dangerous premises and product liability. In addition, he represents victims of sexual abuse including minors, disabled persons and their families. Admitted to practice in New Jersey and before the United States District Court for the District of New Jersey and Third Circuit Court of Appeals, Mr. MacIsaac, is a member of the New Jersey State Bar Association and has been appointed to the Special Committee on Medical Malpractice, where he serves as Vice Chair. He is a member of the Hudson County Bar Association, the New Jersey Association for Justice, Trial Attorneys of New Jersey and the Hudson American Inn of Court. Mr. MacIsaac received his B.A. from Seton Hall University and his J.D. from Seton Hall University School of Law. Bruce H. Nagel, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is a Partner in the Roseland, New Jersey, firm of Nagel Rice LLP and concentrates his practice in
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medical malpractice, class action, serious personal injury and other complex matters. He has more than 40 settlements or verdicts in excess of $1 million. Mr. Nagel has significantly contributed to the expansion and definition of medical malpractice law and trial practice, and he has appeared numerous times before the New Jersey Supreme Court and the Appellate Division. Many of his more influential cases have involved questions of wrongful birth, informed consent, fraud, consumer fraud and trial practice. Admitted to practice in New Jersey and before the United States District Court for the District of New Jersey and the United States Court of Appeals for the First, Third and Fourth Circuits, Mr. Nagel has been a member of the Essex County Bar Association and the New Jersey State Bar Association’s Sections on Litigation and Labor and Employment. He has also been a member of the American Association for Justice (AAJ, formerly ATLA) and the New Jersey Association for Justice (NJAJ, formerly ATLA-NJ). Mr. Nagel is a former Adjunct Professor at Seton Hall University School of Law and has lectured for ICLE and NJAJ. His articles have appeared in the New Jersey Lawyer, the New Jersey Law Journal, The Star-Ledger and other publications. Mr. Nagel received his B.S. from Cornell University and his J.D. from New York University School of Law. Julie E. Nugent is an associate with the firm of Weiss & Paarz, P.C. in Northfield, New Jersey. Since joining the firm in 2014 she has focused her career in the representation of plaintiffs in medical malpractice actions. Admitted to practice in New Jersey and Pennsylvania, and before the United States District Court for the District of New Jersey, Ms. Nugent is a Trustee of the Atlantic County Bar Association and Chair of the Association’s Young Lawyers Division. She is a member of the American, New Jersey State and Pennsylvania Bar Associations as well as the New Jersey Association for Justice. She serves on the Executive Board and Programming Committee for the Vincent S. Haneman American Inn of Court, and also serves with several community organizations. Ms. Nugent received her B.S. from Boston University and her J.D. from Widener University School of Law, where she served as an editor of the Widener Law Review and participated in Widener’s Trial Advocacy Program. She was a judicial law clerk to the Honorable Nelson C. Johnson, Superior Court of New Jersey, Atlantic County, Law Division. Mary Ann C. O’Brien is a Partner in and Senior Appellate and Litigation Attorney with Crammer, Bishop & O’Brien, P.C., a defense litigation firm with offices in Absecon and Medford, New Jersey. She concentrates her practice in the defense of health care professionals and facilities in medical malpractice actions. In her 30 plus years as an attorney she has been involved in more than 20 reported decisions and has successfully argued before the New Jersey Supreme Court. Admitted to practice in New Jersey and before the United States District Court for the District of New Jersey, the Third Circuit Court of Appeals and the United States Supreme Court, Ms. O’Brien is a former Trustee of the Burlington County Bar Association, an Officer of the Burlington County Bar Foundation and a member of the New Jersey State Bar Association’s Medical Malpractice Committee. She has been a frequent lecturer at continuing legal education seminars on topics including medical malpractice and appellate practice and procedure.
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Ms. O’Brien received her B.A. from Pennsylvania State University, her J.D. and M.B.A. from the University of Dayton School of Law and her LL.M. in Trial Advocacy, with Honors, from Temple University Beasley School of Law, where she now serves as faculty in the program. Francisco J. Rodriguez, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is Counsel to Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. in the firm’s Jersey City, New Jersey, office, where he limits his practice to medical malpractice, nursing home malpractice, mass torts and federal Tort Claims Act matters. Mr. Rodriguez is admitted to practice in New Jersey and New York, and before the United States District Court for the District of New Jersey and the Southern and Eastern Districts of New York. Past President of the New Jersey Association for Justice, he has served in several other capacities for the organization. He is a former Trustee-At-Large for the Hispanic Bar Association of New Jersey as well as Trustee for Bergen, Passaic, Morris, Sussex and Warren Counties. Mr. Rodriguez has also been Chair of the Association’s Judicial Appointments Committee and a member of the Bergen County Bar Association. He has been appointed to several United States District Court and New Jersey Supreme Court Committees, including the Supreme Court’s Committee on Civil Trial Certification and the Model Civil Jury Charge Committee. He has also been a member of the Editorial Board of the New Jersey Law Journal Litigator. Mr. Rodriguez received his B. A., cum laude, from Rutgers College, where he was a Henry Rutgers and Edward J. Bloustein Distinguished Scholar and Hispanic Merit Scholar. He received his J.D. from New York University School of Law, where he was Executive Editor of the Review of Law & Social Change. Debra Urbanowicz-Pandos, Certified as a Civil Trial Attorney by the Supreme Court of New Jersey, is the founder of The Pandos Law Group, LLC in Far Hills, New Jersey, and has defended medical malpractice cases for the past 30 years. Admitted to practice in New Jersey and before the United States District Court for the District of New Jersey, the Third Circuit Court of Appeals and the United States Supreme Court, Ms. Urbanowicz-Pandos is a member of the Medical Malpractice Committee of the New Jersey State Bar Association. She has also been a member of the American Bar Association, Trial Attorneys of New Jersey, the Defense Research Institute and the Physician Insurance
Association of America, and is a regular lecturer. Ms. Urbanowicz-Pandos received her B.A. from Michigan State University and her J.D. from Seton Hall University School of Law.
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THE IMPORTANCE OF CIVILITY IN CIVIL
LITIGATION
Civility
a: Civilized conduct; especially: courtesy, politeness
b: a polite act or expressionAmerican Heritage Dictionary
Civility has been recognized as a core element of attorney professionalism.
Erosion Of Professionalism
Dissatisfaction among judges and lawyers by the abrasive dog-eat-dog confrontations. Complaints include: Rudeness, sarcasm and “strategic incivility.”
“Strategic incivility” was defined as: Deliberate misrepresentation of facts; Not agreeing to reasonable accommodations; Frivolous use of pleadings; Inflammatory writings in briefs or motions
POSSIBLE CAUSES
Negative movie and media portrayals since 1970’s depicting lawyers as unethical, disloyal or incompetent;
Inexperienced attorneys who increasingly start their own law practices without supervision;
Modern technology which provides a platform for anonymous digital expression.
CANON 7
A Lawyer Should Represent
a Client Zealously Within the
Bounds of the Law
ABA Model Code of Professional Responsibility (1969-1983)
N.J. RULES OF PROFESSIONAL CONDUCT
1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. (Adopted 1984)
ABA RULE 1.3 DILIGENCE – COMMENT 1
[1] …. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (emphasis added)
ZEALOUS ADVOCACY VS.
Zealous - full of zeal; exhibiting enthusiasm or strong passion.
American Heritage Dictionary
AGGRESSIVE ADVOCACY
Rambo Lawyer – “a litigator who uses aggressive, unethical or illegal tactics in representing a client and who lacks courtesy and professionalism in dealing with other lawyers.”
USLegal.com, Rambo Lawyer, Law & Legal Definition.
RAMBO TACTICS
Name calling; Broad/frivolous objections to legitimate discovery requests; Fighting with counsel during deposition/instructing witness not
to answer or improper coaching of witness; Shouting, screaming or being abusive to counsel, court
personnel or witnesses; Destroying documents or lying about their existence; Making improper statements during opening or closing
arguments (Jones v. Alloy, 2014 WL 7883578 (2015)); “Scorched Earth” practice inundating adversary with motions,
discovery to hamper litigation, or pre-trial practice designed to run up cost of litigation.
NJ SUPREME COURT SPECIAL COMMITTEE OF
ATTORNEY ETHICS AND ADMISSIONS
Proposed adding a provision (h) to RPC 8.4 Misconduct:
“A lawyer shall treat with courtesy and respect all persons involved in the legal process.”
The committee recognized that the rule could be used by disgruntled litigants and adverse counsel, and recommended adding an official comment that a grievance could not be filed until the underlying action was completed.
This provision was not adopted. The NJSBA were among those who opposed the rule stating lawyers who engage in this activity can be disciplined under the existing RPC.
1. Know your case;2. Remain calm;3. Do not counter with Rambo tactics;4. Choose your battles;5. Know your court’s rules and procedures;6. Document and memorialize your adversary’s
conduct;7. Involve the court as necessary;8. Stay true to the facts when involving the court;9. Educate your client.
MISUNDERSTOOD BEHAVIORS
Politeness is not synonymous with weakness.
A firm assertive position does not require you to be rude or insulting.
1. Recognize the importance of keeping commitments and be reasonable with regard to scheduling and extensions;
2. Be respectful, courteous and civil;
3. Be punctual and prepared;
4. Maintain honesty and personal integrity
5. Communicate with opposing counsel;
6. Avoid actions meant to delay or harass;
7. Engage in proper conduct before the court
8. Act with dignity and cooperation in pre-trial proceedings;
9. Act as a role model to client, peers and public;
10. Utilize the court system in an efficient manner.
Raise Your Right Hand and Swear to be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonzaga Law Review 99-146, 146 (2011)
Patricia E. Voorhis, RN, Esq.The Pandos Law Group, LLC
364 Main StreetBedminster, New Jersey
Tel. (908)470-0008Fax (908)470-4008
FEDERAL CLINIC
IMMUNITYJulie E. Nugent, Esq.
Weiss & Paarz, P.C.
609-641-8400
What is a Federally Qualified
Health Center?
A FQHC is typically a:
Community health center
Migrant health center
Homeless health care center
Public housing primary care center
Other ambulatory or outpatient facility
…that receives federal grant funding from the US Dept. of
Health and Human Services (Health Resources & Services
Admin.) under the Public Health Service Act
How to Find a Federally Qualified
Health Center
Nation wide
http://findahealthcenter.hrsa.gov/
New Jersey
http://web.doh.state.nj.us/apps2/fhs/cphc/cphcSearch.aspx
USA Arguments
“Charitable purposes”
District Court lacks SMJ because
FQHC is absolutely immune from
liability, since it was organized
exclusively for charitable purposes
N.J.S.A. 2A:53A-7(a)
“Hospital purposes”
Alternatively, USA is entitled to
partial summary judgment on the
basis that FQHC is entitled to
$250K cap on damages, since it
was organized exclusively for
hospital purposes N.J.S.A. 2A:53A-
8
New Jersey Case Law
“Charitable purposes”
Parker v. St. Stephen’s Urban Development, 243 N.J. Super. 317 (App. Div. 1990)
Morales v. NJ Academy of Aquatic Sciences, 302 N.J. Super. 50 (App. Div. 1997)
Abdallah v. Occupational Center of Hudson County, 351 N.J. Super. 280 (App. Div. 2002)
Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333 (2003)
Kominos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309 (App. Div. 2016)
“Hospital Purposes”
Winters v. City of Jersey City,
63 N.J. 7 (1973)
Kuchera v. Jersey Shore
Family Health Center, 221
N.J. 239 (2015)
New Jersey Case Law Summarized
“Charitable purposes”
Charitable immunity is an affirmative defense (defendant bears BOP)
Fact sensitive analysis of entity’s aims, origins, method of operation and funding to determine whether dominant motive is charitable or some other form of enterprise
Entity is charitable IF performing altruistic, charitable service and “essentially” supported by private donations
Factors supporting a finding that entity is not charitable in nature:
conduit for federal funds + operates in strict conformity with federal regulations
sole source of funding = combo of government grants + payments by private market
< ½% of funding comes from private donations
Does not solicit private contributions on a regular basis (or is not dependent on them)
Does not relieve burden on government
Granting immunity will not serve purposes of NJCIA
New Jersey Case Law Summarized
“Hospital purposes”
The “modern” hospital now offers:
24-hour care; [starting point]
A variety of inpatient and outpatient medical services;
Emergency care, as well as preventative care, therapy, and counseling;
Treatment, regardless of their insurance status or ability to pay; [core]
Teaching component for medical students, physicians, nurses, and other health
care professionals [core]
Educational resources for the general public
Many other health-related pursuits
Federal Case Law
Nazzaro v. United States, 304 F.Supp.2d 605 (D.N.J. 2004)
Lomando v. United States, 667 F. 3d 363 (3d Cir. 2011)
Young v. United States, et al., 152 F.Supp.3d 337 (D.N.J. 2015)
Young v. United States, et al., -- F.Supp.3d – (2016), 2016 WL 3129613 (D.N.J.
June 2, 2016)
DuPont v. United States, et al., -- F.Supp.3d – (2016), 2016 WL 3457150
(D.N.J. June 23, 2016
Young (I)District Judge Kugler
An organization can only avail itself of one immunity provision or the other
USA is not entitled to absolute immunity under the NJCIA
Kuchera’s expansion of “hospital purposes” resulted in complimentary narrowing of
“charitable purposes”
Provision of comprehensive health care services to underserved population,
regardless of insurance status or inability to pay, is the very definition of charity
care, which is a core function of a hospital
Purposes and mission set forth in Certification of Incorporation/Bylaws reference
health related services (fundraising is merely a supportive function of a hospital)
Young (II)
CAMCare is entitled to $250K cap on damages under NJCIA
Did not address issue of whether CAMCare was organized “exclusively for hospital
purposes” – only addressed issue of whether CAMCare was “true nonprofit” within
the meaning of the NJCIA
CAMCare’s status as tax exempt entity under I.R.C. 501(c)(3) is sufficient proof of
“nonprofit” status for purposes of the NJCIA – no deeper inquiry is needed
DuPontChief District Judge Simandle
CAMCare is not entitled to absolute immunity under the NJCIA
CAMCare’s activities are consistent with those of a modern hospital:
Mission is to offer health care services to all patients, regardless of insurance status or ability
to pay – which all hospitals in NJ are required to offer
Provision of a variety of services to patients, including 24-hour emergency medical coverage,
primary care, preventative care, and related support and enabling health services
Provision of health education to the community, including on- and off-site classes on specific
health topics
Use of a sliding discount policy
Complaint does not allege CAMCare was acting in charitable way when treating
plaintiff, rather, it alleges defendant(s) were negligent in performing a core hospital
function (diagnosis and treatment of cervical cancer)
USA’s motion for partial summary on whether it is entitled to $250K cap on
damages denied without prejudice, to be renewed following limited discovery
on the issue
Federal Clinic Immunity Discovery“Charitable purposes”
Governing documents (Cert of
Incorp., Bylaws, etc.)
IRS Deeming Letter 501(c)(3)
Audited Financial Statements
Form 990 Tax Returns
CRI-300R or CRI-200 Forms filed
with State of NJ
Board of Director Meeting
Minutes
Billing Policy
“Bad Debt Expense” Policy
UDS Reports
HRSA Site Visit Reports
Grant Applications
Notice of Grant Awards
Fundraising (other than grant
applications)
Annual Reports (internal use)
30(b)(6) Deposition of any
Representative with
knowledge of the foregoing
Federal Clinic Immunity Discovery“Hospital Purposes”
Affiliation, referral or other
similar agreements/contracts
Residency Program
Educational courses offered to
physicians, nurses, medical
students, or other health care
providers
Educational programs offered
to the public
List of facilities open 24/7
List of facilities providing
“emergency” care (ex: gunshot
wound)
List of facilities providing
“inpatient” care
Complete list of services
offered to the public, including
therapy, counseling, nutrition,
or psychosocial services
Owner of premises/property
where FQHCs operate
Advertisements
30(b)(6) Depositions of any
representative with knowledge
of the foregoing
FQHC is NOT a “Charity”FQHC is a nonprofit entity
organized exclusively for
charitable purposes IRS letter deeming FQHC to be exempt
from federal income tax under
501(c)(3)
Mission is to provide healthcare
services to “medically underserved
population”
Relies on private donations to support
operations
Volunteer Board of Directors
Treat all patients regardless of ability
to pay
Charges on sliding fee scale
Writes off large amount of bad debt
expense
Response:
501(c)(3) status for federal income tax
purposes is not definitive proof of
charitable status under NJCIA
The provision of healthcare services is
not “charitable” in nature, at best this is
hospital purpose
FQHC does not “rely” on private
donations to support operations
Having a volunteer Board, treating
patients regardless of ability to pay, and
use of a sliding fee scale are all pre-
requisites of FQHC certification – not
altruistic decision of FQHC
FQHC is NOT a “hospital”
FQHC is a nonprofit entity
organized exclusively for
hospital purposes
Provision of comprehensive health
services
FQHC same type of entity as the
health center in Kuchera
Initially formed as ambulatory
clinic for hospital
Response:
FQHC does not provide 24-hour
care*, inpatient care or emergency
care, which forms the basis of
every hospital
FQHC is not owned and operated
by hospital, located on hospital
campus, or an integral part of any
hospital system
Ambulatory care centers and
hospitals are distinct entities that
offer very different services
Federal Practice Requirements
FTCA and Notice 28 U.S.C. 2675
Electronic filing Civ. R. 5.2(3)
Initial Conference Civ. R. 26.1(b)(2); F.R.C.P. 26(f)
Case Management Disputes F.R.C.P. 37.1(a)(2);
Civ. R. 16.1(d)(1)
Motion extensions Civ. R. 7.1(d)(5)
Formatting Civ. R. 7.2
2015 Amendments to FRCPs
Parties must “secure the just, speedy, and inexpensive determination
of every action and proceeding.” F.R.C.P. 1
Discovery deadlines reduced:
Complaint and Summons must be served within 90 days F.R.C.P. 4(m)
Time to enter scheduling order is now 90 days of service on defendant, or
60 days of defendant entering appearance F.R.C.P. 16
Discovery must be relevant and “proportional to the needs of the case”
F.R.C.P. 26(b)(1)
Any objection to discovery must specific reason(s) for objection F.R.C.P.
34
Cure for spoliation = sanctions, curative jury instruction, and/or dismissal
F.R.C.P. 37(e)
NOT TO BE PUBLISHED WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS
ELLA PANNACCIULLI, a minor by her
Guardian ad Litem and mother, SARAH
PANNACCIULLI, SARAH
PANNACCIULLI, individually, and
MICHAEL PANNACCIULLI,
individually,
Plaintiffs,
vs.
MICHELLE L. BELOFF, D.O., FAIR
LAWN WOMEN’S HEALTH GROUP,
THE VALLEY HOSPITAL, VALLEY
HEALTH SYSTEM, REBECCA
CILDERMAN, R.N., SHIRLEY HESS,
R.N., DR. GOMATHI ADHIMAYAN,
JOHN DOE, M.D. (I-X), JANE DOE, R.N.
(I-X), and DOE PHYSICIAN GROUP, PA
or DOE PHYSICIAN GROUP, PC or DOE
MANAGED CARE COMPANY,
Defendants.
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
DOCKET NO.: BER-L-845-12
CIVIL ACTION
OPINION
Argued: January 22, 2016
Decided: January 22, 2016
Honorable Robert C. Wilson, J.S.C.
Daryl L. Zaslow, Esq. appearing for Plaintiffs, Ella Pannacciulli, Sarah Pannacciulli, and
Michael Pannacciulli (Eichen Crutchlow Zaslow & McElroy, LLP).
Charles E. Murray, Esq. appearing for Defendants, The Valley Hospital, Valley Health
System, Rebecca Cilderman, RN and Shirley Hess, RN VH-186 (Farkas & Donohue, LLC).
Robert Evens, Esq. appearing for Defendant, Michelle L. Beloff, D.O. (Marshall,
Dennehey, Warner, Coleman & Goggin).
Douglas M. Singleterry, Esq. appearing for Defendant, Dr. Gomathi Adhimayan (Vasios,
Kelly, & Strollo P.A.).
FACTUAL BACKGROUND
THIS MATTER arises out of the delivery and birth of the Plaintiff Ella on September 28,
2006. Ella suffers from neurological injuries, including cerebral palsy. The Plaintiffs submit that
Ella cannot talk or walk and is completely dependent on others. Ella is nine years old and has a
life expectancy into her forties. Ella is presently afforded health insurance through her parents’
employers. The current medical liens for Ella’s care amount to $3,255,344.09. The Plaintiffs
assert that even if Ella only lived into her twenties, the cost of her future medical costs would likely
range between $2,300,000 and $4,500,000. The Defendants contend that Ella will receive
contribution or reimbursement of a majority of these medical costs through the Affordable Care
Act (hereinafter the “ACA”) and thus, Ella’s claim for and presentation of evidence of medical
costs at trial should be limited to take into account potential contribution and/or reimbursement
afforded by the ACA.
A. Defendants Valley Hospital’s Motion to Limit the Plaintiffs’ Claim for and Evidence of
Future Medical Expenses.
THIS MATTER has been brought before the Court by way of motion filed by Charles E.
Murray, Esq. from the law offices of Farkas & Donohue, LLC on behalf of the Defendants, The
Valley Hospital, Valley Health System, Rebecca Cilderman, RN and Shirley Hess, RN VH-186
(hereinafter the “Defendants Valley Hospital”), seeking an Order of this Court limiting the
Plaintiff’s claim for and evidence of future medical expenses. Thomas F. Rinaldi from the law
offices of Eichen Crutchlow Zaslow & McElroy, LLP filed an opposition on behalf of the
Plaintiffs, Ella Pannacciulli, Sarah Pannacciulli, and Michael Pannacciulli (hereinafter the
“Plaintiffs”). The Court, having considered the written submissions, declares that Defendants’
motion is DENIED.
The Defendants Valley Hospital’s motion to limit Ella’s future medical expenses premised
on the argument that she theoretically may be entitled to ACA coverage fails because the
Defendants have not shown that there is a reasonable certainty that Ella will be covered by the
ACA or private health insurance. The burden of proof rests on the party seeking to limit damages
under New Jersey’s Collateral Source Rule.
New Jersey’s Collateral Source Rule is governed by N.J.S.A. § 2A:15-97, Deduction of
Duplicate Benefits, and provides that:
In any civil action brought for personal injury or death…if a plaintiff
receives or is entitled to receive benefits for the injuries allegedly incurred
from any other source other than a joint tortfeasor, the benefits, other than
workers’ compensation benefits or the proceeds from a life insurance
policy, shall be disclosed to the court and the amount thereof which
duplicates any benefit contained in the award shall be deducted from any
award recovered by the plaintiff, less any premium paid to an insurer
directly by the plaintiff or by any member of the plaintiff’s family on behalf
of the plaintiff for the policy period during which the benefits are payable.
Any party to the action shall be permitted to introduce evidence regarding
any of the matters described in this act.
N.J.S.A. § 2A:15-97.
Case law interpreting N.J.S.A. § 2A:15-97 holds that “future collateral benefits are
deductible only to the extent that they can be determined with reasonable certainty.” Parker v.
Esposito, 291 N.J. Super. 560, 567 (App. Div. 1996), cert. denied, 146 N.J. 566 (1996). “[T]he
phrase ‘if a plaintiff…is entitled to receive benefits’ refers only to those benefits to be paid post-
judgment to which plaintiff has an established, enforceable legal right when judgment is entered
and which are not subject to modification based on future unpredictable events or conditions. In
other words, future collateral benefits are deductible only to the extent that ‘they can be determined
with a reasonable degree of certainty.’” See id. at 567 (internal citations omitted).
In Parker, the defendant asserted that it was entitled to a collateral source credit for the
Plaintiff’s future disability insurance and social security benefits. However, the Appellate
Division disallowed any credit on the basis that the plaintiff’s entitlement to those benefits was
subject to periodic review, and that the defendant failed to show that there was a reasonable
certainty that the plaintiff would continue to receive such benefits over the course of his life. See
id. at 567; see also Waldorf v. Shuta, 142 F.3d 601, 630-31 (3d Cir. 1998).
Similarly, in Puzio v. Mimms, No. A-6385-03T1, 2006 N.J. Super. Unpub. LEXIS 821
(App. Div. Jan. 20, 2006), the defendants asserted that the trial judge improperly instructed the
jury with respect to the plaintiffs’ medical expenses because the instruction did not take into
account any collateral sources such as private health insurance benefits, Medicare and Medicaid
benefits, and other social security benefits provided to Michael through government programs. See
Puzio v. Mimms, No. A-6385-03T1, 2006 N.J. Super. Unpub. LEXIS 821, at *33 (App. Div. Jan.
20, 2006). The Court denied the defendant’s claim to limit medical expenses and found that:
[W]ith respect to governmental benefits, only those future benefits that are
neither contingent nor speculative nor subject to change or modification
may be included. Future collateral benefits are deductible only to the extent
that they can be determined with a reasonable degree of certainty.
***
We agree with the [trial] judge’s conclusion that [the plaintiff’s] entitlement
to future benefits, either from his parents’ health insurance coverage or from
governmental programs, was not immutable as of the date of judgment in
his favor. Because his entitlement to future benefits was not determinable
with a reasonable degree of certainty, they do not provide a basis for
reduction of the award in this case.
See id. at *34 (internal citations omitted). The Court recognized that any number of future events
could affect the plaintiff’s right to receive benefits, including loss of medical insurance, job loss,
job change, and constant policy changes. See id. at *34.
The argument postured by the Defendants that Ella will receive benefits under the ACA
does not demonstrate that Ella will in fact receive these benefits with any reasonable certainty.
The Defendants rely on unpublished trial court decisions from other jurisdictions, including
California, which do not have any precedential value in this jurisdiction and do not interpret New
Jersey’s Collateral Source Rule. More importantly, Ella’s right to receive such benefits is likely
subject to policy changes, as Congress has sought to repeal and/or undermine the ACA over fifty
times. Additionally, longevity of the ACA is overwhelmingly called into question by the
upcoming government election. Furthermore, even if, arguendo, the ACA remains in effect for
thirty (+) years, Ella’s entitlement to receive such benefits and the amount that she may be entitled
to receive is merely speculative.
Finally, the Court is not convinced the negligent professional should be exculpated by
coverage afforded from the subsidized coverage of the ACA, or that the ACA may not be entitled
to a recoupment at some future time from such tortfeasor.
The Defendants’ next argue that the Plaintiffs should be barred from offering an expert
opinion concerning future medical expenses because the offered expenses are not fair and
reasonable. The Defendants maintain that the invoiced figures submitted by medical providers are
speculative and do not reflect actual cost. Additionally, the Defendants contend that the Plaintiffs’
future medical costs are calculated based on what a provider charges rather than what the Plaintiff
will actually receive or what is actually incurred. Here, the Defendants’ argument is equally
unpersuasive. The Defendants’ argument is a play on semantics and does not prove that the
Plaintiff will not incur the charges or that these charges are not reasonable. Simply because the
Defendants, or healthcare facilities, could obtain complete or reduced reimbursement from an
insurance carrier and bill the Plaintiff a lesser amount for medical services does not warrant barring
the Plaintiff from offering an expert opinion concerning future medical expenses.
In accordance with the foregoing reasons, the Defendants Valley Hospital’s Motion
seeking to limit the Plaintiff’s claim for and evidence of future medical expenses is DENIED.
B. Defendant Beloff’s Motion to Limit the Plaintiffs’ Claim for and Evidence of Future
Medical Expenses.
THIS MATTER has been brought before the Court by way of motion filed by Michael S.
Levenson, Esq. from the law offices of Marshall, Dennehey, Warner, Coleman & Goggin on behalf
of the Defendant, Michelle L. Beloff, D.O. (hereinafter the “Defendant Beloff”), seeking an Order
of this Court limiting the Plaintiff’s claim for and evidence of future medical expenses on similar
substantive grounds asserted by the Defendants Valley Hospital. Thomas F. Rinaldi from the law
offices of Eichen Crutchlow Zaslow & McElroy, LLP filed an opposition on behalf of the
Plaintiffs. The Court, having considered the written submissions, declares that Defendants
Beloff’s motion is denied for the reasons stated above. The Defendant Beloff’s argument that Ella
will receive benefits under the ACA fails to demonstrate that Ella will in fact receive these benefits
with any reasonable certainty. The Defendant Beloff again relies on unpublished trial court
decisions from other jurisdictions, which do not have any precedential value here and do not
interpret New Jersey’s Collateral Source Rule.
In accordance with the foregoing reasons, the Defendant Beloff’s Motion seeking to limit
the Plaintiff’s claim for and evidence of future medical expenses is DENIED.
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HON. ROBERT C. WILSON