A New Jersey Appellate Division Court holds that the plaintiffs were precluded from utilizing a Social Security Administration disability determination in a personal injury action

November 6, 2013

On October 28, 2005, the plaintiff was involved in a rear-end motor vehicle accident.  The defendant Zimmer was stopped behind the plaintiff.  The defendant DeRosa, driving a van, struck the rear of the Zimmer, pushing Zimmer’s vehicle into the rear of the plaintiff’s vehicle.  The police responded and the plaintiff advised that she was OK and drove away from the scene.  Later, the plaintiff felt sore and went to the emergency room.

 About four months after the accident, the plaintiff began treatment with a chiropractor for back and neck pain.  The plaintiff was referred to Dr. Kaul, a specialist in interventional pain and minimally invasive spine surgery.  Dr. Kaul found the plaintiff had bilateral L5-S1 radiculopathy and tears in discs at L4-5 and L5-S1.  The plaintiff underwent lumbar steroid injections. Eventually, Dr. Kaul recommended spinal fusion therapy; however, the plaintiff declined.

  At trial, the plaintiff testified that she did not return to work as a seamstress because of pain and inability to perform her job functions.

 The defense produced an orthopedic surgeon who testified that the plaintiff was 5’5” and weighed over 300 lbs.  He found no objective evidence of injuries from the accident and that the plaintiff’s back problems were common in overweight individuals.  A radiologist testified that he had reviewed the MRI films and found they showed no evidence of herniated discs or annular tears, but did show age related disc degeneration.

 On June 24, 2007, the Social Security Administration (SSA) issued a four-page Notice of Award finding that the plaintiff became disabled on October 28, 2005.  Prior to trial, defense counsel filed an in limine motion seeking to preclude the plaintiff from introducing any evidence or testimony pertaining to the SSA disability determination.  The plaintiff argued that the determination creates a rebuttable presumption that the plaintiff was disabled and unable to work as a consequence of the accident.  The plaintiff also argued they should be able to cross-examine the defendant’s orthopedic expert with the SSA findings.  The trial court precluded the use of the SSA determination.

 It should be noted that during closing arguments, defense counsel stressed that there was no medical testimony that the plaintiff was unable to work.  Plaintiff’s counsel objected and the court found the defense counsel had “opened the door.”  The jury was then advised that the plaintiff was determined to be disabled by SSA.  The jury returned a unanimous verdict finding the plaintiff did not sustain an injury as a proximate result of the accident of October 28, 2005.

 On appeal, the court first observed that they were not faced with the concepts of res judicata or collateral estoppel since the defendant was neither a party nor in privity with a party to the proceedings before the SSA.

 The Appellate Court also noted that the SSA determination was hearsay.  The court found that the only hearsay exception that may apply to the case was the public records exception under NJRE 803(c)(8).  This evidentiary rule notes, “ (A) that a statement contained in a writing made by a public official of an act done by the official or an act, condition or event observed by the official if it was within the scope of the official’s duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement.”

In rendering its decision, the court looked to Phillips v. Erie Lackawanna RR Co., 107 N.J. Super. 590 (App. Div. 1969), wherein the Appellate Division held the factual conclusions of the hearing examiner of the Public Utility Commission respecting the hazards posed by a particular grade crossing and the Board’s decision directing installation of protective lights and bells was hearsay and not admissible.  The Phillips’ court noted that it is “clearly the intent of the drafters not to allow in evidence conclusionary material resulting from official investigations embodied in statements or reports of the official or agency involved.”  The court also noted that under various Federal Districts and Circuits, the consensus is to favor the view that legal conclusions are not admissible as findings of fact under the Rule.

 The Appellate Court also noted that the cornerstone of the public records exception is trustworthiness.  In this case, a court must be cautious about the use of an administrative determination that may be predicated upon a different, more lenient standard.  Thus the court found that NJRE 803(c)(8) does not authorize the admission of an SSA Determination of Disability as a hearsay exception.

 Lastly, the court highlighted that the SSA Disability Determination is of dubious probative value in a personal injury action.  The lack of a meaningful adversarial process with respect to the cause, existence and extent of the plaintiff’s alleged disability renders the SSA conclusions on that issue unreliable.  Conversely, the court noted that the defendant may suffer real and significant prejudice from the admission of the SSA Disability Determination.  The jury may inappropriately give weight, based on the fact that SSA is a government agency, to its conclusions that the plaintiff suffered a disability.

Failure By Auto Dealership To Disclose that Car Being Sold Had Been Used As A Loaner Violates The Consumer Fraud Act

February 13, 2013

A Law Division Judge has held that a New Jersey car dealer’s failure to advise a purchaser of a car that it had previously been used as a loaner constitutes a violation of the Consumer Fraud Act.  In this case, the purchaser bought a 2008 Mercedes Benz ML350 from the defendant for $42,815.  Soon after, the purchaser’s wife noticed sticker residue spelling “Courtesy Car” in the rear window.  The purchaser complained to the dealership and the dealership agreed to take back the car for $10,000 less than that which the purchaser had paid.  The purchaser did not accept the offer.  The purchaser then sued the dealership claiming that it “misrepresented, deceived and committed an unconscionable commercial practice through fraud and falsity by advising [the purchaser] that the automobile was a lease car traded in by its owner.”  The purchaser claimed that he would not have bought the car if he had known it was a loaner car.

The dealership argued that it was technically correct to say that the vehicle in question was a leased car traded in by its owner because the dealership had bought the car from the manufacturer and then sold it to its leasing subsidiary.  This in turn allowed the dealership to use it as a loaner.

The court permitted the purchaser to prosecute a Consumer Fraud Act claim against the dealership.  After a jury trial, the purchaser was awarded treble damages in the amount of $30,000 and attorney’s fees and expenses in the amount of $45,202.

As an aside, the court found plaintiff’s counsel’s hourly rate of $400 an hour to be reasonable.  Additionally, the judge enhanced the fees by 10% because plaintiff’s attorney did not require payment up front and agreed not to bill the client if he lost.

This is a case of first impression in New Jersey.  Montgomery v. Millennium Auto Group, MRS-L-2839-10.

Proposed Legislation Would Create Statutory Right For Insured To File A “Bad Faith” Claim Against Their Insurance Company And Recover Attorney Fees

February 6, 2013

The New Jersey Senate has reintroduced the “Consumer Protection Act,” which would establish a private cause of action which would allow insureds (or their assignees) to allege “bad faith” against their insurance company.  Currently, a cause of action for “bad faith” is not grounded in statute, but through the New Jersey Supreme Court’s ruling in Rova Farms Resorts Inc. v. Investors Insurance Company.

The proposed legislation provides that in addition to the enforcement authority provided to the Commissioner of Banking and Insurance (“Commissioner”), a claimant may, regardless of any action which has been filed by the Commissioner, file a civil action in court of competent jurisdiction against its insurer for any violation which could be deemed an unfair claims/settlement practice.  What constitutes an “unfair practice” is defined in the New Jersey statute, but may only be pursued by the Commissioner.  The unfair claims settlement practices are defined in N.J.S.A. 17:29B-4(9) as follows:

 Misrepresenting pertinent facts or insurance policy provisions relating to coverage at issue;

Failing to acknowledge and act reasonably and promptly upon communications with respect to claims arising under insurance policies;

Failing to adopt and implement reasonable standards for prompt investigation of claims arising under insurance policies;

Refusing to pay claims without conducting a reasonable investigation based upon all available information;

Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;

Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;

Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately covered in actions brought by such insureds;

Attempting to settle a claim for less than the amount of which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;

Attempting to settle claims on the basis of an application that was altered without notice to, or knowledge, or consent to the insured;

Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made;

Making known to insureds or claimant the policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;

Delaying the investigation or payment of claims by requiring the insured, claimant or physician to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;

Failing to promptly settle claims where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;

Failing to promptly provide a reasonable explanation of the basis of the insurance policy in relation to the facts for applicable law for denial of claim or for the offer of a compromised settlement;

Requiring insureds or claimants to institute or prosecute complaints regarding motor vehicle violations in the municipal court as a condition of paying private passenger automobile insurance claims.


Under this bill, if an insured can establish that an insurance company engaged in an unfair practice, they would be entitled to: (1) their monetary damages; (2) attorney fees; and (3) punitive damages if malice or a wanton/willful disregard for the insured’s rights are proven by clear and convincing evidence.

A similar version of this bill has previously been introduced.  However, it did not clear a committee.  The current version is co-sponsored by Senator Nicholas Scutari (Democrat) and Senator Jennifer Beck (Republican).

In light of Super Storm Sandy, there is the possibility that this legislation will gain support by the legislature.  At this time, no hearing has been scheduled for this bill at the committee level.

NJ Court Rules Defendant Must Produce Video of Accident Before Taking Deposition of Plaintiff in Personal Injury Action

January 29, 2013

A New Jersey Law Division Court addressed the issue “Whether or not a defendant, in the context of a personal injury action, must produce a copy of video surveillance of the accident at issue in the lawsuit prior to the deposition of the plaintiff.”

On May 6, 2009, the plaintiffs Valerie and James Herrick were allegedly struck by a motor vehicle and injured while walking across a valet service road adjacent to the Trump Taj Mahal Casino in Atlantic City, NJ.  At the time of the incident, the motor vehicle, owned by Thomas Megonigle, was being operated by the defendant Adrian Wilson, an employee at defendant Trump Taj Mahal Casino.  The event was captured on security cameras owned by the Taj Mahal.

The plaintiff served supplemental interrogatories and a Notice to Produce requesting that the videotape of the incident be produced.  The defendants refused to produce the videotape.  The plaintiffs filed a motion to strike the answer and suppress the defenses of the defendant for failing to provide the video footage.  In opposition to the motion, the defendants asserted that the plaintiffs’ review of the videotape prior to the taking of their depositions would preclude the defendants from obtaining the plaintiffs’ independent recollection of the accident.

The plaintiffs countered that New Jersey Form C Uniform Interrogatories requires each defendant in a personal injury case to attach copies of any photographs and videotapes relative to the subject matter of the complaint.  Further, the Court Rules require that “every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.”  The court found that the videotape was clearly discoverable pursuant to R. 4:10-2.  The defendants did not dispute the videotape was relevant but sought to postpone production of the tape based on the case of Jenkins v. Rainner, 69 N.J. 50 (1976).  Jenkins concerned a case of post-accident surveillance of the plaintiff taken two years after the incident and after the plaintiff was deposed.  The New Jersey Supreme Court held that video surveillance had to be produced by the defendant but only after the plaintiff was deposed again.

In Herrick, the court found that holding in Jenkins was not controlling.  The court noted a fundamental difference between video surveillance prepared during the course of litigation for the purpose of impeachment and routine surveillance conducted in the normal course of business.  The court also noted that if the defendant were permitted to withhold the video, it would open up a floodgate of motion practice as parties would routinely refuse to produce all evidence that would be more beneficial to produce after depositions are conducted.

Lastly, the court did find some merit to the defendant’s argument that if the video was produced prior to plaintiff’s deposition, then the plaintiff’s unfettered independent recollection would be forever tainted.  However, the court noted the same argument could be advanced with respect to a limitless list of frequently produced discovery including police reports, witness statements, party admissions, e-mails, etc.  The court then ordered that the videotape be produced prior to the deposition.

NJ Supreme Court Does Not Allow Emotional Distress Claim for Witnessing Death of Pet

August 9, 2012

While acknowledging that people may form close bonds with their pets, the New Jersey Supreme Court refused to permit recovery for emotional distress damages stemming from the death of a pet in McDougall v. Lamm, No. A-99-10.  The Court declined to expand the grounds for relief set forth in Portee v. Jaffee, 84 N.J. 88 (1980), the seminal case regarding emotional distress claims arising out of witnessing a traumatic death.

In McDougall, the plaintiff was walking along the street with her nine-year old dog, a maltipoo, when the defendant’s dog, a much larger breed, ran toward plaintiff’s dog, grabbed it by the neck and shook it several times before dropping the maltipoo and running away. Plaintiff’s dog ultimately died. Prior to trial, plaintiff’s emotional distress claim was dismissed via a motion for partial summary judgment, and the trial court limited plaintiff’s claim for damages to the dog’s intrinsic value. Plaintiff appealed the dismissal of her emotional distress claim, and the Appellate Division affirmed the decision of the trial court.

The Supreme Court granted certification to address the question of whether pert owners should be entitled to recover for emotional distress caused by witnessing the traumatic death of a pet. The Court’s analysis focused on the second of the four elements a plaintiff must prove to establish a claim for bystander recovery outlined in Portee: 1) death or serious physical injury of another caused by a defendant’s negligence; 2) a marital or intimate, familial relationship between the injured party and the plaintiff; 3) observation of the death or injury at the scene; 4) resulting emotional distress.  The Court found that despite strong, emotional ties between owners and their companion pets, these bonds do not fall within the limited kinds of relationships permitted to recover Portee damages. In fact, the Court stated that because case law restricts recovery for witnessing the death of most humans, it would make little sense to allow plaintiff to pursue a claim for emotional distress over the loss of her dog.

Additionally, the Court noted that expanding Portee to include emotional distress claims based on the death of a pet would contradict existing statutes regulating dog owners and dangerous dogs, and the Wrongful Death Act, which limits recovery for wrongful death to money damages. Finally, the Court explained that an alternate ruling would create a class of pet owners, companion pets and analogous human relationships both unforeseeable and not readily identifiable.

–Allison Krilla, Esq.

Willful OSHA Violation Not Sufficient to Overcome Workers’ Compensation Bar

July 2, 2012

The New Jersey Supreme Court has ruled in Van Dunk v. Reckson Associates Realty, A-69-10, that a willful violation of OSHA regulations is not enough to permit an injured worker to overcome the workers’ compensation bar and pursue a tort action against his employer. The Court held that the workers’ compensation bar on civil tort suits prohibits an injured employee from filing a direct claim against his employer without a showing that a workplace safety violation was substantially certain to cause injury or death.

In Van Dunk, the plaintiff was a construction worker injured in a trench collapse as a result of what OSHA deemed a “willful violation” of its excavation safety regulations by his employer.  Based in part on this OSHA finding, the plaintiff filed suit against his employer.  In dismissing plaintiff’s claim against his employer, the Court held that the finding of a willful violation of OSHA regulations was not conclusive in analyzing whether the employer committed an intentional wrong, which would allow the plaintiff to overcome the workers’ compensation bar. Further, the Court maintained that the conduct prong of the two-part substantial-certainty test requires more than a mere likelihood or probability that the violation of a safety protocol would result in injury or death. Instead, the plaintiff must show that an objectively reasonable basis exists for the conclusion that a violation was almost certain to cause injury or death.

Should you have any questions concerning the impact of this ruling on liability claims or any other questions, please do not hesitate to contact our firm.

Appellate Division Holds That Plaintiff’s Lack of Due Diligence Bars Replacing ‘John Doe’ Defendant With Actual Party

May 1, 2012

The Appellate Division has held in Andreoli v. State Insulation Corp. et. al. (2011 WL 4577646) that a plaintiff could not replace a “John Doe” defendant with an actual party due to a lack of due diligence in identifying that party.

In this matter, plaintiff filed an asbestos-related wrongful death and survivorship action.  By way of background, plaintiff died from mesothelioma on July 22, 2006.  His estate filed its first complaint on March 1, 2007.  In that complaint, plaintiff alleged that he was exposed to asbestos while working at a Hess-related facility.  At that time, Hess was not named as a defendant.  However, plaintiff did allege that the fictitiously named defendants “negligently mined, milled, manufactured, distributed and/or conspired to distribute the aforesaid fibers, dust, particles and products to the plaintiff’s employer without warning of the potential dangers.”

On November 26, 2008, plaintiff amended his complaint to reflect that he had been employed by a Hess-related entity for a brief period of time.  By motion filed on May 28, 2010, plaintiff’s counsel sought permission to file a third amended complaint to indentify Hess as one of the “John Doe” defendants.  A copy of this motion was not provided to Hess.  On July 19, 2010, the trial court granted plaintiff’s motion to name Hess as a defendant.

In lieu of an answer, Hess filed a motion to be dismissed in October 2010 on the basis that the statute of limitations had expired.  In opposition to this motion, plaintiff’s counsel argued that it was learned during a March 2009 deposition that Hess was a viable defendant.  Hess argued that as early as the filing of the initial complaint, plaintiff was aware that Hess was a viable defendant, but elected not to name the company as a defendant.  The trial court found that plaintiff had complied with the fictitious pleading rule and denied Hess’ motion.

The Appellate Division noted that to utilize the fictitious party rule, the plaintiff must: (1) not know the identity of the defendant said to be named fictitiously; (2) describe the fictitiously named defendant with appropriate detail sufficient to allow identification; (3) provide proof of how it learned the defendant’s identity; and (4) act diligently in identifying the defendant.  The court noted that “a showing of diligence is a threshold requirement for resort to fictitious-party practice.”  Additionally, the court noted that in limited circumstances, prejudice to a defendant may be considered in evaluating whether a plaintiff has acted diligently.

In reviewing this matter, the court first found that the plaintiff’s fictitious pleading could not be fairly construed to encompass a premises defendant (Hess) within a group of fictitiously named asbestos suppliers or installers.  Additionally, the court found that the plaintiff failed to provide an affidavit regarding how he obtained information about the identity of Hess.  Overall, according to the court, the record lacked evidence that plaintiff exercised due diligence in indentifying Hess. Accordingly, the trial court’s ruling was reversed and the matter remanded so that Hess could be dismissed from the matter with prejudice.