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Defense Expert Barred from Testifying that Plaintiff is Exaggerating Symptoms

In Rodriguez v Wal-Mart, A-4137-14T3, the App. Div. held for the first time in NJ that a defense expert (non-mental health professional) could not opine that plaintiff had symptom magnification. The appellate court ruled that a qualified expert can provide factual testimony recounting observations or physical movements or responses to testing during the examination subject to R. 403 (probative v. prejudicial analysis). Also, the qualified expert is not precluded from testifying that the plaintiff’s subjective complaints are inconsistent with objective medical test results or findings. Finally, the appellate court did not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, again subject to R. 403. Thus, the appellate court held: “that such testimony at a civil jury trial should be categorically disallowed under N.J.R.E. 403.”


Cannot Circumvent Child Support Lien to Reduce Attorney Fees

Law Division Judge rejects plaintiff’s attempt to circumvent his Child Support Lien and does not allow his attorney to reduce the attorney’s counsel fees so that the plaintiff can receive more than the $2,000 allowed by statute. Plaintiff’s child support lien was greater than his recovery and thus if he settled he would only receive the statutory amount of $2,000 of the $25,000 policy settlement offer. Plaintiff’s counsel sought a ruling to allow him to reduce his fees with the reduction going to the plaintiff not towards his outstanding child support lien. The balance of the settlement still went to the child support lien and that amount paid to probation did not change if the Court approved this request or not. Thus, Plaintiff was playing hard ball and refusing to settle if he did not receive more than the statutory amount of $2,000 of the $25,000 policy offer and his attorney did not want to be responsible for any monies the attorney paid to his client per a reduced contingency fee. Thus, they sought an Order allowing counsel to reduce the contingency fee and pay that reduction to the plaintiff in addition to the $2,000 plaintiff could receive per the statute as that was the only way the plaintiff would settle. The Court would not sanction that conduct and stated “that judicial policy of encouraging …settlement is trumped by the legislative intent in adopting … [the Child Support Lien Statue].” Plaintiff was told to settle and receive $2,000 so that the balance of the settlement could go towards his child support lien or plaintiff could take his case to trial.


 Trial Court Allows Meds Exceeding PIP Limit to Go To Jury 

Judge Vena is a trial court judge in Essex County and he authored the unpublished opinion of Charles v Thomas. ESX-L-9911-13 holding that the actual Medicaid bill and not the grand total of all the bills go to the jury. Since unpublished appellate court decisions are not binding, his unpublished trial court decision is also not binding. But, the logic and reasoning used by Judge Vena can be reiterated and used to support the position that only “that” amount that has to be paid back is the actual amount that goes to the jury, not the total amount of the bills. Unfortunately, there are no Appellate Court decisions and that results in varying rulings/uncertainty as to what amount goes to the jury. Basically, it would be either the total amount and then the amount is molded after the verdict or the actual amount that has to reimbursed. Per Judge Vena and citingCaldwell v Haynes, 136 N.J. 422, 433 (1994), the plaintiff is to be made whole and is to be compensated for the actual loss; Medicaid is not a collateral source, per N.J.S.A. 2A: 15-97 so there is no double recovery; and expenses “incurred” means the amount that plaintiff is liable for, not the total amount of the bills. Finally, Judge Vena states that he is fully aware of R. 1:36-3 and what it provides with respect to unpublished opinions, but notwithstanding that rule, the Appellate Division has made it clear that while unpublished opinions are not binding, the trial courts are nevertheless permitted to consider the analyses and find them persuasive and use the analyses as guideposts in reaching conclusions. National Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. 13, 19 (App. Div. 2005). Thus Judge Vena used the Appellate Court’s unpublished opinion in Ribeiro v. Sintra, 2008 N.J. Super. Unpub. LEXIS 771 at *2, (App. Div. July 10, 2008) to further support his analyses and ruling. In Ribeiro, the plaintiff’s medical bills were almost $179,000 but the providers accepted a little over $25,000 from plaintiff’s health insurance company as payment in full. Plaintiff argued that the entire amount should go before the jury and the defense argued that the amount accepted as payment in full should be presented to the jury. The Appellate Division noted that the purpose of the collateral source rule, N.J.S.A. 2A: 15-97, is to prevent double recovery and the statue placed no restriction on the introduction or evidence of the total amount of medical bills incurred. Id. at *6, citing Dias v. A. J. Seabra’s Supermarket, 310 N.J. Super. 99, 102 (App. Div. 1998). Thus, in Ribeiro, the Appellate Division held that medical expenses incurred are the equivalent to the amount accepted by medical providers for the full payment of their services rather than the actual amount stated in the medical bills. Id. at *7.

Thus, the analyses and persuasiveness of both Judge Vena’s trial court case and the unpublished Ribeiro appellate court case can be used as guideposts to argue that only the amount of the medical bills/lien that must be reimbursed is to go to the jury and that is the boardable amount and NOT the total amount of the bills incurred. BUT, a trial judge is free to reject that argument as, again, we are not aware of any published appellate court cases that support that position.


 High/Low Agreements Are Not Binding in UIM Case

In the unpublished Appellate Division case of Ferrante v NJM, A-3680-13T4 the Appellate Court disagreed with the trial court’s decision that a high-low agreement that capped the verdict at the Tortfeasor’s policy barred a UIM claim. The facts are very interesting and it really makes you wonder….as this was a 10/06 accident; a 1/11/11 jury verdict; and it was the next day on 1/12/11 that plaintiff’s counsel faxed NJM, the UIM carrier, notifying NJM for the VERY first time about the lawsuit and that it was seeking UIM benefits. Prior to trial plaintiff entered into a high-low agreement of $25K to $100K for this verbal threshold case. The jury returned a $250K verdict. However all NJM was told was that the Tortfeasor’s carrier was willing to tender their $100K policy and counsel provided information regarding the Tortfeasor’s assets presumably to help speed up their decision. This was plaintiff’s Longworth notice. Plaintiff’s counsel did not advise NJM that the matter was tried pursuant to a high-low agreement and that a $250K verdict was rendered. It was only due to motion and trial practice that NJM became aware of what transpired and NJM initially took the position that the plaintiff was only entitled to $50K ($300K UIM limits minus $250K verdict), but plaintiff took the position that $200K was still available ($300K UIM limits minus $100K paid by tortfeasor). At no time did NJM “articulate that it had been prejudiced”. But due to trial delays NJM ultimately took the position that plaintiff could not pursue UIM as the $100K cap per the high low agreement was plaintiff’s representation as to the full value of the case. The Appellate Division majority did not agree and did not find that there was any agreement or stipulation that the actual value of plaintiff’s damages was limited to $100K. The Appellate Court further stated that there was no authority supporting the premise that the floor or ceiling amounts in a high-low agreement represent or are an admission of the party’s opinion of the case value. Rather the agreement guaranteed plaintiff would recover at least a modest sum if the jury rejected his claim that he sustained a permanent injury. There was nothing about the terms of the agreement that constituted an admission of the value of the damages. The agreement was a symbiotic one, it advanced each party’s interests and it did not impair plaintiff’s right to pursue UIM benefits.

The failure to timely notify NJM did cause the Appellate Court to remand to the trial court to resolve the issue of any prejudice to NJM. Judge Accurso provided a very pointed dissent.


Appellate Court Affirmed Trial Court’s Granting of Summary Judgment 

In Ilg v Meade, a recent unpublished Appellate Division case, A-1345-14T3, the Appellate Court affirmed the Trial Court’s granting of Summary Judgment dismissing the plaintiff’s neighbor’s case; she fell on the defendant’s property as she walked around his car because the car blocked the sidewalk. The decision contains a good amount of residential sidewalk case law/standards, so if you want a copy just reach out to us.


Appellate Division Did Not Find Mode-of-Operation Rule to Apply to Burlington Coat Factory 

In Troupe v Burlington Coat Factory, Approved for Publication 1/26/16, A-1687-14T4, the Appellate Division did not find the mode-of-operation rule to apply to Burlington Coat Factory. Although plaintiff fell on a berry on the floor in the baby section of the department store, the Appellate Division found that there was no actual or constructive notice of the dangerous condition and thus no breach of duty of care to plaintiff, its invitee. The mode-of-operation rule shifts the burden of proof from the plaintiff to defendant in situations where there is a self-service component to the defendant’s business. An example would be the fruit and vegetable section of a grocery store where water is commonly utilized and a patron slips on a wet floor. Here, the plaintiff argued that food is commonly utilized by babies and young children and thus one would expect to find food in the baby area. However, this Appellate Court did not find the mode-of-operation rule to be applicable. Please feel free to contact us with any questions about this case and/or any New Jersey issue/matters.


Condo Association Not Liable for Plaintiff’s Accident

A recent unpublished Trial Court opinion, Niiya v Grand Cove Condo, Judge Polifroni ruled that the Condo Association was not liable for a plaintiff’s accident on a State mandated public sidewalk along the Hudson River waterfront. The plaintiff fell on the sidewalk in an area that was recently fixed with new pavers installed by the Condo. Defendant argued that a clear reading of N.J.S.A. 2A:42A-8 evidences the state legislature’s intent to limit liability to property owners with land abutting the state’s coastal waterways as they were required to make this land available to the public. The Defendant also asserted that the New Jersey Department of Environmental Protection (“DEP”) issued a publication further explaining the above-referenced provision: “The law is especially beneficial to 1) property owners on the Hudson River and other waterfronts, where, as DEP regulations require developers to provide sections of a publicly-accessible walkway or bike path . . . [.]” Although there was no case law as to this specific provision, the defendant argued that a clear reading of N.J.S.A. 2A:42A-8 and the above-cited DEP clarification make it clear that the Condo fell within the protected class contemplated by the statute.

Plaintiff argued that N.J.S.A. 2A:42A-8 was drafted to provide limited liability to landowners so that the public can use and enjoy, among other things, property along the state’s waterfronts, not to eliminate sidewalk liability for a property owner who makes active repairs to its property, specifically a walkway consisting of pavers. Plaintiff contended that such a legislative purpose would stand in contrast to well settled law in Stewart and its progeny regarding the responsibilities of landowners who make repairs to their property.

Both sides agreed that the Condo complex was a residential property for the purposes of premises liability per Luchejko v. The City of Hoboken, 207 N.J. 191 (2011) and Stewart v. 104 Wallace Street, 87 N.J. 146 (1981). Here the Condo further asserted that it was immunized from liability under the New Jersey Landowners’ Liability Act (“LLA”), N.J.S.A. 2A:42A-8 and in an unpublished decision the Trial Court agreed.


Texter Could Be Responsible for an Accident to a Driver Receiving the Text 

The NJ App Div recently ruled in Kubert v Best, A-1128-12T4, that a texter could be responsible for an accident to a driver receiving the text. The driver received a text from his friend and the court ruled that a sender of a text can POTENTIALLY be liable only if the sender KNEW or had a SPECIAL REASON to know that the recipient would view the text while driving and thus be distracted. The court specifically stated: “We conclude that a person sending a text message has a duty not to text someone who is driving if the texter knows, or has a special reason to know, the recipient will view the text while driving.”


Carrier is Barred from Rejection a UM Award 

The New Jersey Appellate Division recently held that a carrier is barred from rejection a UM award that exceeded $15,000 where the carrier’s responsibility for the amount awarded did not exceed $15,000. Badiali v NJM, A-2795-11T3.

This UM case involved two UM carriers. The UM arbitrators awarded the plaintiff over $29,000. The carriers equally shared responsibility and the one carrier paid its share. However, the other carrier (NJM) rejected the award and demanded a jury trial acknowledging that their portion of the award did not exceed $15,000. However, they argued that since the award exceeded The Financial Responsibility Law of New Jersey, N.J.S.A. 39:6A-3, which fixes the threshold at $15,000, they were entitled to reject the award and proceed with a jury trial. This appellate court did not agree and thus put this issue to rest by making this a published opinion.


Carrier’s Misrepresentation of PIP Limits Does Not Require Commercial Carrier to Reimburse 

In an unpublished opinion, the Appellate Division in AIG Centennial Insurance V Thompson, Docket No. A-4358-11T2 held that when a carrier misrepresented the PIP limits as $250K when the limits were only $15K, the PIP reimbursement statute (N.J.S.A. 39:6A-9.1) does not require the commercial carrier to reimburse the carrier that incorrectly paid over its PIP policy limits.

AIG incorrectly informed it’s insured that she had $250K in PIP benefits when she had $15K. However, the commercial carrier, ARI was not held to be responsible for AIG’s mistake and only had to reimburse AIG for the PIP policy limits of $15K.