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.

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.

Delivery Person Owes No Duty to Business Owners and Employees When Placing Items in a Designated Delivery Area

July 11, 2012

A delivery person has no duty to warn business owners and employees when making a delivery and placing items in the general area designated for such deliveries, according to an unpublished decision by the Appellate Division in Fry v. Pepsi Bottling Group, et als., A-5775-10T3. The Court found the hazards at issue, sixteen canisters of soda and C02 delivered to a tavern and placed near the kitchen, were both expected and obvious, and therefore, no duty to warn existed.

The plaintiff, who was employed as a cook, struck her leg on one of the canisters placed in a narrow passage near the tavern’s kitchen. However, she had walked through the area about twenty minutes before the incident without a problem. According to the tavern owner, the delivery company was instructed to the put the canisters in that location to keep them “out of the way.”

The Court rejected the argument that the placement of the canisters was similar to the five-foot wide puddle on which an employee slipped at issue in LaRussa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156 (App. Div. 2003) which was caused by a significant amount of melting snow tracked into a hotel kitchen by a delivery person. In LaRussa, the Court determined that in analyzing the totality of the circumstances, the delivery person did owe a duty to notify hotel personnel of the hazard created by the melting snow. The large puddle created a risk of harm that was obvious and easily foreseeable to the delivery person, whose actions created the dangerous condition. Yet the water was both unexpected and difficult for an employee walking through the hotel kitchen to see. Therefore, the Court in Fry concluded that since the general placement of the canisters was expected and posed no hidden danger, no duty may be imposed on the delivery person to notify the tavern owner or employees that such a delivery had been made.

— Allison Krilla, Esq.

New Law Changes Rule Governing Removal of Matter From State Court to Federal Court

April 17, 2012

On January 6, 2012, the Federal Courts Jurisdiction and Venue Clarification Act (“Act”) of 2011[i], came into effect.  The Act as a whole brought changes to Federal statutes affecting venue, removal and jurisdiction.  The purpose of this article is to discuss the important changes under the Act that impact the timing requirements associated with removing an action from a State Court to Federal Court.  Under the Act, in multi-defendant litigation, each defendant now has thirty days from the date on which they were served to file a Notice of Removal to the Federal District Court.

Prior to the Act becoming effective, there was a split between Circuit Courts and within the Circuits themselves, regarding when the timing requirements for seeking removal from State Court to Federal Court began to run.  The two legal doctrines applied in addressing this issue were known as the “later-served” rule and the “first-served” rule.  Prior to the passing of the Act, the Fourth and Fifth Circuit Courts had adopted the “first-served” rule while the Third, Sixth, Eighth, Ninth and Eleventh Circuit had adopted the “later-served” rule.

Before the Act’s enactment, courts disagreed on whether the language in 28 U.S.C . § 1446 provided that the thirty-day window for filing a Notice of Removal began to run when the first defendant was served or was triggered upon the service of each defendant who was a party to the litigation.  As was noted by the Ninth Circuit Court of Appeals, the question presented to the courts was “does the first-served defendant’s thirty day clock run for all subsequently served defendants (the first-served rule), or does each defendant gets its own thirty days to remove after being served (the later-served rule)?”[ii]    Prior to the passing of the Act, 28 USC §1446 (a) provided that:   “[any] defendant or defendants desiring to remove any civil action… from a state shall file in the District Court of the United States for the district and division within which such action is pending a Notice of Removal…containing a short plain statement of the grounds for removal together with a copy of all process, pleadings, and orders served on such defendant or defendants to such action.”  Further, 28 USC § 1446(b) provided that “the Notice of Removal of the civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter.”  In interpreting this statutory language, courts found ambiguity permitting the development of the “first-served” and “later-served” rules.

The reasoning utilized to support the first-served rule was enunciated in Mcanally Enterprises, Inc. v. Mcanally, et al., 107 F. Supp.  2d 1223 (2000).  In that matter, plaintiff had originally filed a complaint in the Superior Court of the State of California.  During the course of the litigation, pleadings were amended to include defendants.  The new defendants filed a Notice of Removal within thirty days of being served with the amended complaint.  Plaintiff then filed a motion to remand the matter to state court claiming that the procedural requirements of 28 USC §1446 had not been met.  Specifically, plaintiff argued that the thirty day period for removal began to run when the first defendant was served.  Accordingly, plaintiff asserted that as the initial defendant did not seek removal within the thirty day period, removal was not appropriate.

In ordering that the matter be remanded to state court, the federal court initially noted that in multi-defendant litigation all defendants must consent to the removal  (known as the Unanimity Rule).[iii]    The court reasoned that as the initial defendant in this action did not seek removal within the thirty day timing requirement, allowing that defendant to later consent to removal sought by a newly added party would defeat the timing requirement set in the statute.    Further, the court held that applying the “first-served” rule would support the proposition that forum selection should be resolved as early as possible in litigation and that removal statutes must be narrowly construed .[iv]  Accordingly, based on this reasoning, the court determined that the thirty day time period for removal ran upon service on the first defendant.  This reasoning largely served as the basis for the “first-served” rule which was exercised by a minority of jurisdictions at the time the Act was passed.

The rationale behind the “later-served” rule was enunciated by the Third Circuit Court of Appeals in the Delalla v. Hanover Insurance et al.[v]  In that matter, plaintiff had initially been sued in connection with a trademark dispute over a line of nutritional supplements.  Plaintiff’s liability insurance carrier retained defense counsel to represent the plaintiff in connection with that action.  Defense counsel negotiated a settlement in that matter on behalf of the clients.  Subsequently, plaintiff felt the terms of the settlement were improper and filed suit against its liability carrier and its attorneys in the State Court of New Jersey.

The liability carrier was initially served and did not seek to remove the matter to Federal Court.  Former defense counsel was subsequently served and then filed a Notice of Removal.  At that time, the thirty day period to seek removal had expired for the liability carrier.  The liability carrier consented to the request to remove the matter to District Court.  The matter was subsequently removed to the District Court.  Plaintiff then filed a Motion to Remand the matter back to State Court.  Ultimately, the request to remand was denied.

On appeal, the Third Circuit addressed the issue as to when the thirty day time period for removal began to run under 28 USC §1 446.  Ultimately, the Third Circuit found that the “later-served” rule should be applied in addressing removal matters under 28 USC § 1446.  The court noted “the first-served rule not only unfairly prejudices later-served defendants, but it creates a perverse incentive system that encourages further inequity.  Under the first-served rule,  a plaintiff who wishes to remain in State Court benefits by serving a defendant who is indifferent to removal, and then waiting to serve other defendants who are more likely to wish to remove.  The rule thus incentivizes plaintiffs to take advantage of the inequities inherent under the first-served rule.  By protecting each defendant’s right to removal  without regard to whether other defendants were served earlier, the later-served rule thus removes the incentive for unfair manipulation by delaying service on defendants most likely to remove.”[vi]

The Act has now resolved the differences between the Circuit Courts in applying the timing requirements for removal.  Under the Act, 1446(b) now provides “each defendant shall have thirty days after receipt by or service on that defendant of the initial pleading or summons described in paragraph one to file the  notice of removal.”  Further, “if defendants are served at different times, and a later-served defendant files a Notice of Removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.”  The Act also codifies the unanimity rule by providing “when a civil action is removed solely under Section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

[i] P.L. 112-63

[ii] Destfino v. Reiswig, 630 F. 3rd 952, 955 (9th Cir. 2011)

[iii] See Chicago, Rock Island & Pacific Railroad v. Martin,  178 US 245, 248 (1900)

[iv] The decision in Mcanally was handed down prior to the Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 US 344 (1999), which allowed a lenient interpretation of 28 USC 1446.

[v] 660 F. 3d 180 (2011)

[vi] Id. at 187, citing Destfino, 630 F.3d at 955

Justice Rivera-Soto Will Not Participate in Cases Before the Court

December 16, 2010

On December 10, 2010, New Jersey Supreme Court Justice Roberto Rivera-Soto (Republican) issued two opinions in which he advised that he will not participate in the Court’s proceedings while a temporarily assigned Appellate Division Judge sits on the Court. The controversy stems from Governor Chris Christie’s (Republican) refusal to renominate Justice John Wallace (Democrat) to the Court. Under the New Jersey Constitution, Supreme Court Justices initially serve a seven-year term. After that term expires, the Governor may then renominate the Justice for tenure, allowing the Justice to serve until the mandatory retirement age of 70.

Justice Wallace’s seven-year term was to end on May 20, 2010. However, May 3, 2010, Governor Christie announced that he would not renominate Justice Wallace. This position was consistent with Governor Christie’s campaign pledge to “reshape” the Supreme Court. In not renominating Justice Wallace, it was the first time in the history of New Jersey’s modern constitution (63 years) that a governor refused to renominate a sitting Justice. Normally, as a matter of course, governors would renominate a sitting Justice even if that Justice was from an opposing political party.

After announcing that Justice Wallace would not be renominated, Governor Christie nominated Anne Patterson (democrat) fill the seat being vacated by Wallace. The democratically controlled Senate in turn blocked the nomination of Ms. Patterson. This in turn created a vacancy on the court. Accordingly, Chief Justice Stuart Rabner temporarily appointed Judge Edwin Stern (the senior most Appellate Division Judge) to fill the vacancy.

Despite previously participating in cases with Judge Stern, Justice Rivera-Soto announced on December 10th that he was abstaining from future participation in cases before the Court while Judge Stern sat on the bench. In his abstaining opinion, Justice Rivera-Soto maintained that it is a violation of the State Constitution to temporarily appoint a judge to the Court simply to fill a vacant seat instead of doing so to maintain a quorum (which is 5 Justices). Chief Justice Rabner responded to Justice Rivera-Soto’s opinion by asserting that it is constitutionally permissible to temporarily appoint Judge Stern to the Court. He further added that Justice Rivera-Soto has no basis for refusing to participate in voting and writing decisions and is failing to fulfill his obligation as a Justice of the Supreme Court.

In the coming weeks, it will be interesting to see how the Executive and Legislative Branch respond to Justice Rivera-Soto’s decision to abstain from future court proceedings. Within the Legislative Branch, there has been discussions concerning whether Justice Rivera-Soto should be impeached for refusing to participate.

— 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://reardonanderson.com to learn more about our firm.

Owner of Chiropractic Center Sentenced to 3 Years in Prison

November 30, 2010

On November 22, 2010, the former owner and President of Spinal Care & Rehabilitation Center located in Rahway, New Jersey was sentenced to 37 months in federal prison. In April 2010, Roberto Castanon pled guilty to mail fraud and admitted to organizing a scheme to defraud auto insurance companies. The scheme, which lasted from January 2003 through February 2007, consisted of Castanon recruiting individuals to stage automobile accidents and then referring those individuals to his Center for medical treatment. Additionally, he coached these individuals on how to fake injuries to obtain unnecessary medical treatment. Bills for the treatment rendered to these individuals were then submitted by Castanon to insurance companies for payment.

Castanon admitted that this scheme resulted in more than $400,000 in losses to insurance companies. In addition to his prison sentence, Castanon was ordered to pay $341,688.94 in restitution. Additionally, two co-conspirators have pled guilty to mail fraud, sentenced to prison terms and ordered to pay restitution.

See the United State Attorney’s press release regarding Castanon’s sentencing here….http://bit.ly/dNiCo0

— 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://reardonanderson.com to learn more about our firm.