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.


Appellate Division Holds That Expert Is Not Permitted To Provide Opinion With Regard To Proximate Cause

November 1, 2013

            The Appellate Division has held that an expert witness cannot provide an opinion with regard to proximate cause.  In rendering its decision, the Court noted that “proximate cause is a factual issue, to be resolved by the jury after appropriate instruction by the trial court.”

            At issue in Wilkey v. Mayer was a motor vehicle accident involving the defendant striking the plaintiff as she was crossing a street with her car.  In order to prove her case, plaintiff retained the services of an accident reconstruction expert.  At the time of trial, plaintiff sought to offer this expert to explain to the jury how the accident happened.  In his report, and in his testimony, the expert opined that the defendant had an unobstructed view of the plaintiff for 300 feet before impact.  He further opined that if the defendant had seen the plaintiff at a distance of 300 feet, she would have had sufficient time to apply her brakes and avoid striking the plaintiff.

            Prior to offering this testimony to the jury, a Rule 104 hearing was held.  The defendant objected to the expert’s conclusions on the basis of them being net opinions.  Specifically, the defendant contended that the expert had not considered all evidence produced in discovery which would challenge his ultimate opinions.

            The trial court ruled that the expert could not testify that the defendant failed to use due caution.  However, over the defendant’s objection, the court ruled that the expert could give an opinion on proximate causation and the defendant could challenge the opinion on cross examination.  Accordingly, the expert was allowed to testify that “the defendant’s actions by failing to make observations of plaintiff crossing the roadway during clear daylight conditions, was the proximate cause of the accident.”  The expert then repeated on cross examination on two occasions that the defendant’s failure to observe the plaintiff was the proximate cause of the accident.  In an attempt to rebut this testimony, the defendant than attempted to question the expert on whether there could be more than one proximate cause of an accident.  Despite the trial court’s ruling that the defendant could challenge the expert’s ultimate opinions, the court would not allow that line of questioning, ruling “that’s a question of law for the Court.  I’ll define proximate cause to the jury at a later time.  The expert’s definition of proximate cause will not help this jury.”

            During jury deliberations a question regarding proximate cause arose.  The parties agreed to give the jury the Model Charge for proximate cause.  Subsequently, the jury returned a unanimous verdict that the defendant was negligent and awarded $600,000 in damages.  The defendant than appealed.

            In reviewing this case, the Court noted that “it is the court’s function, not that of an expert, to interpret the law” and the concept of proximate cause is of “legal significance.”  It is the responsibility of the trial judge, “where the question of ‘proximate cause’ is involved, to explain to the jury in simple terms what the law means by that expression and to illustrate the application of its legal principles to the facts to the particular case which he is trying.”

            The court found that in this case, plaintiff’s expert usurped the function of both the court and the jury when he repeatedly testified that the defendant’s conduct was the proximate cause of the accident.  While the expert was qualified to reconstruct things such as the defendant’s rate of speed, plaintiff pace and path of travel across the roadway and sight lines, “nothing in his background gave him any special ability to apply legal concepts of proximate cause and comparative negligence to the facts that he had reconstructed.”

            In vacating the liability finding, the court found that the trial court committed error by permitting the expert to express an opinion with regard to proximate cause.  This was further exacerbated by the court refusing to allow the defendant to cross examine the expert on whether the plaintiff’s actions could be a proximate cause of the accident.

            Due to this error, the Appellate Division reserved and remanded the matter for a new trial on liability.  The damage award was not disturbed as the defendant did not challenge same in its appeal.

Lack of contractual responsibility for maintenance of property does not relieve commercial unit owner from duty of care to plaintiff

February 20, 2013

Despite a developer’s contractual responsibility for maintenance and repair of an area outside a commercial condominium unit, the owner of that unit owes a duty of care to the employee of an independent contractor with regard to a hazardous condition in that same location, according to the Appellate Division’s published decision in Nielsen v. Wal-Mart Store #2171 (A-2790-11T1). The Court balanced  a number of factors in concluding that the lack of ownership or control of the area did not absolve Wal-Mart of liability, including the relationship of the parties, the attendant risks, the nature of the risks and ultimately, fairness to the innocent plaintiff.

The plaintiff, William Nielsen, was injured when he slipped and fell in a shopping plaza in Princeton while in the course of his employment with Ecolab, Inc., which had been hired by Wal-Mart to exterminate pests. He had been instructed by the store to access various entrances from the exterior of the unit owned by Wal-Mart. The perimeter of the store, where plaintiff fell, was owned by the developer, who, pursuant to the master deed, agreed to “supervise, administer, operate, manage, insure, repair, replace and maintain” the common elements. The plaintiff subsequently filed suit against Wal-Mart, and unsuccessfully attempted to amend the complaint to name the developer as a defendant more than two years after the action’s accrual, at which point the statute of limitations had run. At trial, a jury found Wal-Mart 80 percent negligent and awarded plaintiff damages of $400,000. Wal-Mart’s motion for a new trial was denied.

On appeal, Wal-Mart argued that the trial court erred in failing to distinguish between the duty owed by a business owner on and off its premises. The Appellate Division stated that case law supports the imposition of liability beyond the boundaries of a commercial land occupier’s property (i.e. to abutting sidewalks and adjacent public roadways). Likewise, while a lack of ownership or control of an area has relevance in determining the existence of a duty of care, the Court noted it is not dispositive. The Court also indicated that the private contractual arrangement of duties between a commercial unit owner and developer is simply another factor to be considered in the analysis.


Ultimately, the Court affirmed the trial judge’s decision based on foreseeability and fairness grounds. Wal-Mart directed the plaintiff to use the unit’s perimeter to perform extermination work, and as such, was aware that its invitees and passersby might foreseeably traverse the area outside the unit. The Court also suggested that, despite no contractual obligation to maintain an area, a business owner, such as Wal-Mart, would be encouraged to alert the responsible entity of a hazardous condition if a duty of care was imposed on that unit owner.

Don’t copy my Wallaby…the battle of the wine makers

February 28, 2011

The producer of Yellow Tail wine has filed a federal law suit in New York against the maker of Little Roo wine for trademark infringement.  Yellow Tail (the nation’s best-selling imported wine) is alleging that Little Roo’s label, which features a kangaroo, is an attempt to profit off of the wallaby used on Yellow Tail’s labels.  It is Yellow Tail’s position that Little Roo is using the kangaroo in its marketing to confuse consumers into thinking that Little Roo wine is the same as, or affiliated with Yellow Tail.  Read the Wall Street Journal article here.  Yellow Tail filed a similar suit in 2009 against Bronco Wines (producers of “two buck chuck”) alleging trademark infringement when they applied for labels featuring wallabies.  Bronco Wines intended to offer a $3 bottle of wine called Down Under.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


November 10, 2010

A New York Judge has recently ruled that a personal injury lawsuit could be maintained against a four year old girl. In that case, a lawsuit was filed on behalf of Claire Menagh (then 87 years old) by her executor in New York County alleging that while walking on the sidewalk, she was struck by two infant children, age 4 and 5, who were also racing their bicycles on the sidewalk. At the time of the accident, the infants’ mothers were supervising the children while they rode their bicycles. As a result of the collision, Ms. Menagh sustained a hip fracture which required surgery. She died three months later of unrelated causes.

The Estate of Ms. Menagh filed suit against the two infant children and their mothers. In lieu of filing an answer, one of the infants who was four years and nine months old at the time of the accident filed a motion seeking to have the complaint dismissed. The attorney for the infant argued that as a matter of law, due to child’s age she was incapable of being found negligent in causing the accident (the technical term for this legal concept is non sui juris – meaning not his own master). New York Courts have recognized that infants under the age of four are conclusively presumed incapable of negligence. However, the Courts in New York have found that under certain circumstances infants over the age of four can be found negligent. In those cases where an infant is over the age of four, New York Courts have held that the infant should be held to a standard of care by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity.

In this case, the Judge noted that as the infant was over four years old a factual record must be developed regarding the maturity and experience of the infant. As no discovery had been exchanged, he denied the motion to dismiss. However, while the in the Judge did not dismiss the infant, he did indicate that depending on how the facts regarding this case were developed (e.g. the maturity of the child, the child’s experience, etc.), it was possible that the child could be dismissed later in the case.

Across the river, New Jersey Courts differ slightly with regard to whether or not an infant may be found negligent in a personal injury matter. The Courts have found that there is a rebuttable presumption of incapacity for infants less than seven years old. However, an infant could be found negligent despite being younger than seven depending on the infant’s capacity to exercise care under the circumstances. See Cowen v. Doering, 111 N.J. 451 (1988).

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.

EZ Pass records admissible at trial

October 25, 2010

An unpublished Appellate decision concerning a domestic violence action may have ramifications in the defense of trucking claims. In S.S.S. v. M.A.G., 2010 WL 4007600 (N.J. Super A.D.), at the hearing for a final restraining order, the plaintiff testified that on October 4, 2009, the defendant called the plaintiff to meet with him the next day. On October 5, at 9:00 a.m. the plaintiff left her classroom at Rutgers-Newark and entered defendant’s car. Defendant then drove the plaintiff to a motel. At the motel, plaintiff alleged that the defendant pushed the plaintiff, grabbed her arm and shoved her. According to the plaintiff, the assault occurred in Jersey City at 9:30 a.m. and she returned to school at 10:00 a.m.

The defendant, appearing pro se, testified that the plaintiff’s testimony was “all a lie.” He offered a letter from his employer stating that the company’s records show the defendant arrived at work at 8:35 a.m. and left at 5:00 p.m. The judge refused to accept the letter, ruling it was hearsay.

The defendant also offered into evidence his EZ Pass records showing he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. The defendant argued that it would be impossible for him to cross the bridge at that time, arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick the plaintiff up at 9:00 a.m. The judge refused to accept the EZ Pass records.

The Appellate Division noted that:

N.J.R.E. 803(c) (6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was ‘made at or near the time of observation,’ was prepared in the regular course of business and it was the ‘regular practice of that business’ to keep such a record. Business records maintained in a computer system are not treated differently from hard copies made because they are stored electronically. Although no reported decision has ever considered whether EZ Pass records qualify as a business record under N.J.R.E. 803(c) (6), such records are not qualitatively different from the many records that have been so admitted.

How this decision will impact the defense of trucking claims remains to be developed. Potential uses for EZ Pass records at trial include: showing compliance or a violation of the hours of service regulations; demonstrating a “habit” of speeding or adherence to the speed limit; or allowing jurors to figure out average speeds a trucker drives (e.g. , if the driver enters the toll plaza at 2 p.m., the accident occurred at 2:30 p.m. and the accident scene was 35 miles from the toll plaza a juror will “do the math” and find that the driver was averaging 70 mph).

—Thomas Reardon III, Esq.

Reardon Anderson represents the interests of trucking companies, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.


October 18, 2010

Recently, the New Jersey Appellate Division ruled that during jury selection, an attorney may utilize his laptop through a wireless connection to Google the names of potential jurors. In Carino v. Muenzen, 210 W.L. 3448071 (App. Div. 2010), which was a medical malpractice case, plaintiff’s counsel was using his laptop to Google the names of potential jurors during voir dire. During voir dire, the Judge asked the plaintiff’s counsel if he was utilizing his laptop to Google the names of potential jurors. Plaintiff’s counsel advised the court that he was indeed doing so. The trial Judge ordered counsel to discontinue Googling the names of the potential jurors as the Judge felt it gave plaintiff’s counsel an unfair advantage over defense counsel who did not have a laptop present.

On appeal, one of the issues addressed by the Appellate Division was whether or not the trial Judge had the discretion to order plaintiff’s counsel to stop using his computer to Google the names of potential jurors. The Appellate Division noted that New Jersey state courts provide free wireless internet access for anyone with a laptop. As such, it did not accept the trial Judge’s finding that plaintiff’s counsel had an unfair advantage over defense counsel in utilizing that free public wireless internet access. The Appellate Division wrote that as plaintiff’s counsel “had the foresight to bring his laptop computer to work, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of fairness or maintaining a level playing field. The playing field was in fact already level because internet access was open to both counsel, even if only one of them chose to utilize it.”

This decision holds that during jury selection attorneys may utilize free public wireless internet access during that process without first giving notice to the court. Accordingly, it is important for counsel to have a laptop and the ability to utilize same (we at Reardon Anderson do).

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.