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NEW JERSEY APPELLATE DIVISION AFFIRMATION OF AN HKMP NO CAUSE ON BEHALF OF A PhD PHYSICAL THERAPIST IN A MEDICAL MALPRACTICE ACTION
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The New Jersey Appellate Division, in the case of
J.D. v. Performance Physical Therapy and Sports Conditioning
, has affirmed the no-cause defense verdict obtained by Mark Kundla and Eileen Rudd on behalf of a physical therapist in a medical malpractice action. Plaintiff, who underwent two corrective surgeries relating to a lifting injury, alleged that the defendant physical therapist failed to properly treat plaintiff after the first surgery, as directed by plaintiff's surgeon. After a three week trial, the jury found no evidence of malpractice.
In April 2018, the Appellate Division not only affirmed the jury’s finding that the physical therapist was not liable for problems plaintiff experienced after her second shoulder surgery, but also ruled that the trial court acted properly by allowing the defendant therapist to testify as an expert on his own behalf. The Appellate Court found that unless there was a clear abuse of discretion by the trial court, appellate panels are not to interfere with decisions about whom the court qualifies to testify as experts, and found nothing wrong or unusual about allowing the defendant physical therapist to testify as an expert on his own behalf. Accordingly, the defendant's testimony, stating the reasons why certain actions were taken in therapy and providing opinions about the treatment rendered, were properly admissible before the jury.
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HOSPITAL FACILITY SELF-CRITICAL ANALYSIS PRIVILEGE UPHELD BY THE NEW JERSEY SUPREME COURT
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In July 2018, the New Jersey Supreme Court ruled in
Janelle Brugaletta v. Calixto Garcia
, D.O., Case No. 079056, that a hospital may withhold sections of its self-critical analysis of a former patient in a medical malpractice lawsuit. However, the facility may be required to provide a narrative dealing with the underlying information regarding treatment. The Supreme Court affirmed the Appellate Division ruling regarding
N.J.S.A.
26:2H-12.25, known as the Patient Safety Act.
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HKMP WINS DEFENSE VEDICT IN CASE OF ALLEGED LOSS OF FETUS
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HKMP Attorney Todd C. Landis successfully defended a “loss of fetus” claim in the Bergen County Superior Court. Plaintiff alleged the loss of a fetus as a basis for an exception to the automobile verbal threshold, pursuant to
N.J.S.A.
39:6A-8(a), specifically arguing that trauma from a motor vehicle collision forced a medical abortion. After 5 days of trial, including testimony by both plaintiff and defense experts regarding the fetus’ viability, the jury returned a verdict for defense, concluding that termination of pregnancy was not the result of the subject accident, thus not an exception to the verbal threshold.
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VERDICT IN SLIP AND
FALL DURING ONGOING SNOW STORM CASE RESULTING IN NUMEROUS FRACTURES SIGNIFICANTLY LESS THAN MEDICALS AND PLAINTIFF DEMAND
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HKMP Attorney Todd C. Landis successfully defended a slip and fall case which occurred in the driveway of our client’s commercial premises during an active snow event. Plaintiff, a realtor, alleged that she was on the property to show the home to a prospective
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buyer when she was caused to slip and fall on pre-existing snow and ice, which was permitted to accumulate on the property.
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THE NEW JERSEY SUPREME COURT HAS ADOPTED THE EXPERT ADMISSIBILITY FACTORS AND GATEKEEPING FUNCTION OF THE TRIAL COURT ENUNCIATED IN DAUBERT
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The standard for the admissibility of experts in New Jersey, in civil cases only, changed effective August 1, 2018. The New Jersey Supreme Court,
In re: Accutane Litigation (A-25-17) (079958), adopted the expert admissibility factors and standard set forth in
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which standard is more stringent than New Jersey Rules Of Evidence regarding admissibility of expert testimony; however, the New Jersey Supreme Court has "stopped short” of declaring New Jersey a “
Daubert jurisdiction” because although the
Daubert factors are useful, the Court hesitates "to embrace the full body of
Daubert case law as applied by state and federal courts" and is concerned that there is “no monolithic body of case law uniformly or even consistently applying Daubert.”
In re: Accutane Litigation at page 83. Further, and notably, the "general acceptance test for reliability" is still the standard in criminal matters.
In re: Accutane Litigation at page 83. In adopting the
Daubert factors, the New Jersey Supreme Court decision reconciled N.J.R.E. 702, and relatedly N.J.R.E. 703, regarding expert admissibility.
In re: Accutane Litigation at page 6.
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RECENT ASBESTOS DECISIONS
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THE NEW JERSEY APPELLATE DIVISION REVERSAL OF TWO MIDDLESEX COUNTY TRIALS
The New Jersey Appellate Division has reversed, per curiam, two New Jersey Middlesex County asbestos trials in two recent decisions. One decision favors the plaintiff; the other favors the defendant.
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OEM MANUFACTURER HAS LIABILITY FOR REPLACEMENT PARTS UNDER A FAILURE TO TO WARN THEORY
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The New Jersey Appellate Division, in
Whelan v. Armstrong International, Inc
., (A – 3520 – 13T 4), a published decision on August 6, 2018, "refined" a manufacturer's duty in the context of asbestos-containing products, holding that an original equipment manufacturer (OEM) "may be held liable for the failure to warn of the dangers associated with the asbestos contained in their product — inclusive of component parts it did not manufacture or supply."
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673 Morris Avenue , Springfield, New Jersey 07081
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110 William Street, New York, New York 10038
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212-571-0111
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