NJ Law Review Update

On February 1, 2007 the NJ Appellate Division, in the case of Kranz v. Tiger et al, held that the plaintiff in a prior negligence action submitted sufficient evidence to go to the jury on his allegations that the negligence of his attorneys and his medical expert in communicating with each other was the cause of the expert’s unavailability and plaintiff’s acceptance of a settlement. Plaintiff had been injured as a result of a fall, and agreed to a $500,000 settlement solely because he understood that defendant Tiger, his only orthopedic expert, would not be available to testify. Without Tiger, plaintiff could not prove that any of his injuries were caused by the fall. In reaching its decision, the Appellate Division reasoned that the issue was not what the attorneys honestly believed in regard to whether they lost their expert and thought that the settlement was reasonable, but whether they acted reasonably in forming and acting on that belief. Nor was the issue whether the settlement was reasonable. Rather, it was whether plaintiff, but for defendants’ negligence, would have obtained a judgment in excess of the settlement had the case gone to trial. The court held that plaintiff had submitted sufficient evidence to go to the jury on his allegations and the matter is remanded for trial.

Also on February 1, 2007, the NJ Appellate Division, in the case of Kwiatkowski v. Gruber et al, held that an order dismissing a plaintiff’s personal injury action without prejudice for failure to appear at a court-ordered medical exam was not a final disposition appealable as of right. The defendants in a personal injury action had scheduled a medical examination for plaintiff, and on the day before the exam defense counsel changed the exam date, and plaintiff was unable to attend. Defense counsel then filed a motion to dismiss the complaint for plaintiff’s failure to appear for the exam. When plaintiff failed to appear on a new date, the complaint was dismissed without prejudice pursuant to Rule 4:23-5(a)(1), and plaintiff appealed. The Appellate Division reasoned that under Rule 4:23-5(a)(1), which applies to demands for interrogatories, documents, and medical examinations, the dismissal without prejudice that defendants obtained is not a final order, since the delinquent party may move for vacation of the dismissal at any time before an order of dismissal with prejudice is entered, with an affidavit reciting that the discovery has been fully and responsively provided. The rule implicitly requires that plaintiff’s counsel must ask defense counsel to schedule another exam and defense counsel must cooperate in a reasonable manner. After the exam, plaintiff may move for reinstatement of his complaint.

On Feb 13, 2007 the NJ Appellate Division, in the case of Jablonowska v. Suther, held that the plaintiff’s Portee v. Jaffee emotional distress claim arising out of an automobile accident is subject to the limitation-on-lawsuit threshold in N.J.S.A. 39:6A-8a and was properly dismissed for failure to meet that threshold. The plaintiff was driving her car, in which her mother was a passenger, when it collided with a car driven by the defendant. Plaintiff claimed that she suffered emotional distress pursuant to Portee v. Jaffee as a result of witnessing her mother’s injuries and death. While stating that plaintiff presented sufficient evidence to support the jury’s award of damages on the wrongful death and survivorship claims, the court held that the trial judge properly dismissed plaintiff’s emotional distress claim because she failed to show by objective credible evidence that she sustained a permanent injury to a bodily organ. According to the plain language of N.J.S.A. 39:6A-8a, a lawsuit seeking damages for “noneconomic” loss resulting from a “bodily injury” that arises from the “ownership or operation” of an auto may not be maintained unless the claimant has sustained a “bodily injury” that results in an injury as defined in the statute. Because the threshold applies, plaintiff was required to produce a timely physician’s certification from a licensed treating physician or a board-certified licensed physician to whom she has been referred, establishing that her post-traumatic stress disorder resulted in a permanent injury to a “body part or organ.”

In addition, on February 21, 2007 the NJ Supreme Court, in L.W. v. Toms River Regional Schools Board of Education, held that the NJ Law Against Discrimination (LAD) permits a cause of action against a school district for student-on-student harassment based on an individual’s perceived sexual orientation if the district’s failure to reasonably address that harassment effectively denies that student any of a school’s accommodations, advantages, facilities or privileges. The district is liable for such harassment when it knew or should have known of the harassment but failed to take actions reasonably calculated to end the mistreatment and offensive conduct. Beginning in the fourth grade, plaintiff was taunted with homosexual epithets, and over the years the bullying escalated to physical aggression and molestation, culminating with a pair of physical attacks that caused L.W. to withdraw from his high school and enroll elsewhere, at the expense of his school district. L.W.’s mother filed a complaint on his behalf, alleging that the Toms River Regional Schools Board of Education failed to take corrective action in response to the harassment. The Court said that in order for a student to state a claim, he must allege discriminatory conduct that would not have occurred but for his protected characteristic, that a reasonable student of the same age, maturity level and protected characteristic would consider it sufficiently severe or pervasive enough to create an intimidating, hostile or offensive environment, and that the district failed to reasonably address such conduct. The reasonableness of a district’s response to peer harassment must be assessed in light of the totality of the circumstances. The cumulative effect of all student harassment and all efforts of the school district to curtail the maltreatment also must be considered. Expert evidence may be required to determine reasonableness.

Finally, on February 20, 2007, the U.S. Supreme Court, in Philip Morris USA v. Williams, held that a punitive damages award based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. In this state negligence and deceit lawsuit, a jury found that Jesse Williams’ death was caused by smoking and that Philip Morris knowingly and falsely led him to believe that smoking was safe. In making its decision, the Court stated that the Constitution imposes limits on both the procedures for awarding punitive damages and amounts forbidden as “grossly excessive.” The Due Process Clause forbids a state to use a punitive damages award to punish a defendant for injury inflicted on strangers to the litigation. A defendant threatened with punishment for such injury has no opportunity to defend against the charge, and permitting such punishment would add a near standardless dimension to the punitive damages equation and magnify the fundamental due process concerns of this Court’s pertinent cases – arbitrariness, uncertainty and lack of notice. In addition, the Court found no authority to support using punitive damages awards to punish a defendant for harming others. Given the risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is asking the right question; and given the risks of arbitrariness, inadequate notice, and imposing one state’s policies on other states, it is particularly important that states avoid procedure that unnecessarily deprives juries of proper legal guidance.

reprint with permission from Brian Harris