New Jersey Unapproved Opinions: May 14-20, 2015

1. Evans v. Meadowlands Hospital, App. Div. 

29-2-6834 Evans v. Meadowlands Hospital, App. Div. (per curiam) (26 pp.) Defendant Dr. Peter DiPaolo appealed the judgment entered in favor of plaintiff, who had dislocated her left knee which led to a stretching of her popliteal artery, in this medical malpractice action alleging a failure to timely treat plaintiff that led to substantial medical complications and the amputation of her left leg above the knee. The panel affirmed. It found that the opening remarks of counsel representing two other defendants speculating that Dr. DiPaolo did not timely report to the hospital because he might have been drinking were improper but did not require a new trial since the comments were brief and the judge gave prompt, strong curative instructions. The panel also found that the court should have permitted DiPaolo’s attorney to use undated, unsigned notes prepared by a nurse after the incident to refresh the recollection of a testifying defendant-doctor but that the inability to use those notes was at best harmless since that doctor was well-aware, given his examination of plaintiff, that he could have called a vascular surgeon and because DiPaolo’s attorney could have called the nurse to testify. The court also found that the inability to use the nurse’s notes to cross-examine a medical expert was not error since the expert did not testify that he had reviewed and used the notes in rendering his opinion and DiPaolo’s counsel used the nurse’s deposition testimony to cross-examine the expert.  The panel also concluded that the court did not err in excluding the hospital’s redacted root cause analysis from evidence as there was an insufficient foundation to admit it under N.J.R.E. 803(b) or 803(c)(6). The panel also found that the high-low settlement agreements entered into between plaintiff and three defendant-doctors were not prejudicial to DiPaolo because the agreements were not Mary Carter agreements since liability did not shift so that the settling defendants would be paying nothing and DiPaolo was in an adversarial position against the settling doctors since the beginning of the trial because they pointed the finger of blame at him.

2. Rosario v. Ogando, App. Div.

36-2-6838 Rosario v. Ogando, App. Div. (per curiam) (14 pp.) In this motor vehicle personal injury case, plaintiffs appealed from the order of the Law Division dismissing with prejudice their cause of action against defendant. The appellate panel found that the motion judge’s decision to dismiss plaintiffs’ complaint with prejudice was inconsistent with the court’s rules of procedure governing the enforcement of discovery rules and orders in civil litigation. The motion judge did not adhere to the procedural requirements of Rule 4:23-5(a)(1) and (2). Although plaintiffs’ conduct with respect to their discovery obligations to defendant was less than exemplary, the record did not support the motion judge’s decision to impose the ultimate sanction of dismissal with prejudice. The appellate panel reversed and remanded.

3. Phillips v. Weichert, App. Div.

36-2-6802 Phillips v. Weichert, App. Div. (per curiam) (8 pp.) Plaintiff Kimberly Phillips alleged that she was injured when she tripped on the staircase at her workplace, a commercial office building. At the time, she was employed as a quality control/audit manager for Weichert Insurance Company. The complaint, filed July 29, 2011, sought damages for personal injuries and only named as defendant the record owner of the premises, James M. Weichert. The complaint also named “JOHN DOES I-X, fictitious names representing unidentified Weichert companies which own, lease or have an interest in the Property.” Here, plaintiffs appealed from the denial of their motion to amend their complaint to add a defendant, Weichert Company. In December 2011, plaintiffs were provided with a photocopy of the building lease, which named Weichert as the landlord and Weichert Company as the tenant. Plaintiffs asserted they did not file for amendment at that time because they wanted to continue to explore in discovery the manner in which the building was operated and maintained. In their November 2012 motion to amend, plaintiffs alleged no prejudice would flow to Weichert Company because it had knowledge of the claim from the time Kimberly fell. Plaintiffs also stated that the discovery period had not yet expired. The appellate panel found the proposed defendant would not be prejudiced here, as it was on notice of the incident since the day it occurred. In fact, the Weichert Company representative in charge of maintenance was notified of a problem with the stair immediately after the accident. Since the question of whether the amendment would be futile had not yet been addressed and the claim was not time-barred, the appellate panel reversed the denial of plaintiffs’ motion to amend the pleadings.

4. Medina v. Daimler Trucks North America LLC, U. S. Dist. Ct.

32-7-6797 Medina v. Daimler Trucks North America LLC, U. S. Dist. Ct. (Linares, U.S.D.J.) (11 pp.) In this action alleging that a design defect in the truck the deceased was driving caused his death, plaintiff moved to exclude defendants’ experts, Keven Granat, Jon S. Olson, and Jacob L. Fisher, alleging that they did not meet the standards required by Daubert v. Merrell Dow Pharmaceuticals. The court reviewed each expert’s education, experience and methodology, noted that much of plaintiff’s argument related to the credibility of the experts, and denied her motion. [Filed March 31, 2015]

5. Lee v. Park, U. S. Dist. Ct. 

36-7-6862 Lee v. Park, U. S. Dist. Ct. (Salas, U.S.D.J.) (7 pp.) Plaintiff filed this action alleging negligence per se, negligence and breach of confidentiality, alleging that defendant, his physician, allegedly wrongfully disclosed confidential medical information to his wife. Plaintiff appealed the magistrate judge’s denial of his motion to amend his complaint to add a claim for breach of fiduciary duty 16 months after the deadline to amend the pleadings and the magistrate judge’s order granting defendant’s motion to compel plaintiff to provide defendant with the full litigation file relating to his state court divorce proceeding. The court denied plaintiff’s motions for appeal/review. It found that because plaintiff had not addressed the “good cause” issue regarding his motion to amend, he had not met his burden of showing that the amendment order was clearly erroneous or contrary to law. The court also found that plaintiff’s motion seeking appeal/review rehashed the arguments that were before the magistrate judge and that he failed to address the magistrate judge’s characterization of defendant’s motions – that they are an application to enforce the court’s order and did not raise any new discovery issues, which undermined his arguments. The court therefore found that plaintiff failed to meet his burden of showing that the discovery order was clearly erroneous. [Filed April 2, 2015]

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