Jun 19, 2020

Admissibility of Expert Testimony and Propriety of Cross-Examination and Closing Arguments

 

By Brian R. Lehrer, Esq.

Evidence/Closing Arguments

The New Jersey Supreme Court recently addressed the admissibility of expert testimony and the propriety of cross-examination and closing arguments in a case involving personal injuries arising out of an automobile accident. Among other things, the Court held that the plaintiff was deprived of a fair trial based upon defense counsel’s references in opening arguments to a “litigious society,” questions on cross-examination about plaintiff’s immigration status and questions about whether any of the passengers in defendant’s vehicle had sued him for personal injuries. Morales-Hurtado v. Reinoso, - N.J. – (2020).

 

In Morales-Hurtado, plaintiff was injured in an automobile accident. During the course of the trial, defense counsel’s opening statement referred to American society as “litigious”. During the trial, plaintiff cross-examined the plaintiff about his immigration status and citizenship. Defense counsel cross-examined the plaintiff about his need for an interpreter. Defense counsel asked his own client whether any of the passengers in defendant’s vehicle had sued him as a result of the accident. Defense counsel cross-examined plaintiff about the airbags in his car not deploying, in spite of the fact that defense counsel had no expert to opine on the issue. Defense counsel cross-examined plaintiff’s medical expert on the concept of “secondary gain,” implying that patients involved in litigation may have incentive to exaggerate their symptoms. Defense counsel cross-examined plaintiff’s medical expert about a draft report. Defense counsel cross-examined plaintiff’s experts on documents they had neither reviewed nor relied upon.

 

The Appellate Division held that all of the foregoing was improper and should not be permitted on retrial of the matter. The Supreme Court affirmed. 

Additionally, the Supreme Court addressed the trial Court’s decision to exclude the opinion of plaintiff’s life care planner on the grounds that it was based on unreliable sources of information. The Supreme Court noted that expert witnesses may rely upon the opinions of another expert in a relevant field under N.J.R.E. 703. However, that principle does not dispense with the need to demonstrate that the treating physician on whom the lifecare expert relied actually holds the opinion attributed to him or her in the lifecare planner’s report. The Court noted that any experts or treating physicians’ opinion on which the lifecare expert relied, must be couched in terms of reasonable medical certainty or probability and on remand the trial Court should conduct a hearing pursuant to N.J.R.E. 104(c) to determine the admissibility of the lifecare planner’s opinions.

Real Property/Damages

The Supreme Court recently addressed the framework for determining a plaintiffs’ damages claim for trespass to land and held that plaintiffs had failed to meet their burden of proof after alleging that a neighbor’s removal of a “bamboo fence” resulted in compensable damage to their property. Kornbleuth v. Westover, - N.J. – (2020).

In Kornbleuth, plaintiffs sued their neighbors, the Westovers, after Bamboo was removed from plaintiffs’ property by contractors hired by the defendants. Plaintiffs filed a complaint for trespass and conversion, describing the destruction of a “bamboo fence” which provided both the benefits of privacy and aesthetics. 

Their claim was dismissed on summary judgment. Ultimately, the dismissal was affirmed by the Supreme Court.

The Court noted that Section 929 of the Restatement (Second) of Torts contemplates two possible damages valuations: (1) if the cost of restoring the land to its original condition is not proportionate to the diminution in the value of the land and there is no reason personal to the owner for restoring it to its original condition, damages are limited to the diminution value; and (2) if the cost of restoring the land to its original condition is not proportionate to the diminution in the value of the land, but there is a reason personal to the owner for restoring the land, damages are not limited to the diminution in the value of the land. Of relevance to the Kornbleuth matter, the Court noted that the law limits the damages recoverable for trespass to the land when there is no reason personal to the owner for restoring the property to its original condition.

The Court noted that the plaintiffs never offered evidence of any losses incident to the removal of the bamboo, but instead claimed the nature of the damages sought – restoration costs – was an election available to them for trespass to land.  Plaintiffs’ experts alleged restoration costs of roughly $41,000.00. The Court pointed out that when restoration costs are disproportionate to diminution of value and there is no reason personal to the owner for restoring the property to its original condition, restoration costs are not reasonable. Whether restoration costs may be recovered is not an election of the agreed party but is dependent upon a showing that such damages are reasonable. 

The Court pointed out that plaintiffs’ claim had been properly dismissed because they had not presented legally sufficient evidence of peculiar value and a general interest in privacy in vague assertions of the aesthetic worth of bamboo as opposed to any other natural barrier did not establish value personal to the owner. Finally, even if they had presented such evidence, proportionality and reasonableness of restoration costs could not be determined without evidence of diminished value or some similarly helpful yardstick for comparison – proofs which were absent in this case.

The Court concluded that based upon plaintiffs’ evidence, a trier of fact would be legally disabled from determining whether restoration costs were a reasonable measure of damages since plaintiffs produced no evidence against which proportionality or reasonableness might be assessed.

Premises Liability – Ongoing Storm Rule

In a case involving a slip and fall accident, the Appellate Division recently held that a commercial land owner has a duty to take reasonable steps to render a public walkway abutting its property – covered by snow or ice – reasonably safe regardless of the weather conditions at the time of the fall. Pareja v. Princeton International Properties, et al., - N.J. Super. – (App. Div. 2020).

In Pareja, the plaintiff was injured when he fell on a sloped apron outside defendant’s premises while it was sleeting. Plaintiff’s case was dismissed on summary judgment under the
“Ongoing Storm Rule” which the trial Court interpreted as barring any claim predicated on snow or ice removal until precipitation has ceased. The Appellate Division reversed.

The Appellate Division held that a landowner does have a duty to remove snow and ice during an ongoing storm. The Court’s holding did not impose upon commercial landowners absolute liability for every slip and fall injury during the course of a continuous storm, but rather imposed an obligation of reasonableness under the circumstances – which is generally a jury question. The Court also noted that municipal ordinances addressing snow removal do not create a tort duty as a matter of law, but may be evidential as a basis for persuading the finder of fact that the defendant acted unreasonably under the circumstances.

The Court concluded that a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property – covered by snow or ice – reasonably safe even when precipitation is falling. This liability may arise only if, after actual or constructive notice, it fails to act in a reasonably prudent manner to reduce or remove the foreseeable hazard.

Employment Law – Retaliatory Discharge

In a case involving a claim for retaliatory discharge under the New Jersey Law Against Discrimination (LAD), the Appellate Division recently held that plaintiff’s termination following an alleged refusal to cooperate with defendant by disputing a co-employee’s claim for sexual harassment constituted a valid basis to assert a claim for retaliatory discharge. Rios v. Meadowlands Hospital, - N.J. Super. – (App. Div. 2020).

In Rios, plaintiff was an emergency medical technician employed by defendant, Meadowlands Hospital. A co-employee file a sexual harassment complaint against the hospital and plaintiff’s supervisor requested that plaintiff Rios cooperate with the hospital in defending the harassment complaint by, among other things, making false statements about the former employee. Plaintiff refused and was fired. 

Plaintiff filed a single-count Complaint against the hospital under the LAD asserting a retaliatory discharge claim. The trial Court dismissed the Complaint, but the Appellate Division reversed.

The Court held that plaintiff’s Complaint alleged a valid claim under N.J.S.A. 10:5-12(d), which protects employees from reprisals because that employee has opposed any practices or acts forbidden under the LAD. The Court noted that plaintiff’s allegations that following the filing of a co-employee’s claim for sexual harassment, defendant requested plaintiff to file a baseless complaint for a restraining order against her; conjure up false complaints about her; and make false statements about her, constituted a valid basis for a retaliatory discharge claim if those facts were proven at trial.

The Appellate Division applied the broad holding of a prior Supreme Court case which mandates that a prerequisite to a valid N.J.S.A. 10:5-12(d) claim is a showing that the protected action triggering the retaliation was taken on a good faith and reasonable basis and will satisfy that for the purposes of summary judgment plaintiff had demonstrated there was a good faith and reasonable basis for his opposition to defendant’s actions that are forbidden by the LAD. See generally, Carmona v. Resorts International Hotel, Inc., 189 N.J. 354 (2007).

The Appellate Division thus reversed the summary judgment finding and remanded the case to the trial Court.

Automobile Insurance/Subrogation

In a case involving the interplay between the Worker’s Compensation Act and the Auto Insurance Cost Reduction Act (AICRA), the Supreme Court recently held that New Jersey Transit had a valid subrogation action against a defendant automobile operator after paying worker’s compensation benefits arising out of an accident. New Jersey Transit Corp. a/s/o David Mercogliano v. Sanchez, et al., - N.J. – (2020).

In New Jersey Transit, David Mercogliano was a transit employee who was injured in a work-related motor vehicle accident. As a result of the accident, NJ Transit paid worker’s compensation benefits consisting of medical benefits, temporary indemnity benefits and permanent indemnity benefits characterized by NJ Transit as lost wages. All worker’s compensation benefits paid related only to economic loss.

At the time of the accident, Mercogliano owned an automobile. He had elected the limited threshold option on his policy and it was undisputed that his injuries did not satisfy the limited threshold.

NJ Transit filed an action against the individuals allegedly at fault in the accident under N.J.S.A. 34:15-40, a provision of the Worker’s Compensation Act authorizing employers to assert subrogation claims against tortfeasors.

The trial Court dismissed NJ Transit’s claim on the grounds that its employee Mercogliano did not suffer any economic loss because NJ Transit’s worker’s compensation carrier paid benefits for all of his medical expenses and lost income. Therefore, the Court ruled he had no claim for economic loss under N.J.S.A. 39:6A-2(k), the section of AICRA which permits a plaintiff to sue a tortfeasor for economic damages. Ultimately, the Supreme Court reversed.

The Supreme Court held that NJ Transit had a valid claim. It noted that the worker’s compensation benefits paid to Mercogliano related only to economic loss and its subrogation did not implicate the limitation on lawsuit threshold imposed by N.J.S.A. 39:6A-8(a). The Court viewed NJ Transit’s subrogation action to comport with the objectives and terms of the Worker’s Compensation Act and found no evidence that when the legislature enacted AICRA, it intended to bar employers and insurers that had paid worker’s compensation benefits for economic loss from seeking reimbursement from third-party tortfeasors in cases which the employee’s losses were covered by worker’s compensation benefits and the employee neither sought nor received personal injury protection benefits from his own automobile policy.

It is crucial to note that the case did not involve a subrogation action by the worker’s compensation carrier for any benefits paid for non-economic loss pursuant to N.J.S.A. 34:15-36. The Court noted that the parties disputed that all of the worker’s compensation benefits paid related to economic loss and conceded that the trial Court on remand could decide to expand the record to resolve any factual disputes about the partial permanent disability payments made in this case. Thus, the Court left open the possibility that some of the subrogation claim could be barred because any claim made by Mercogliano for pain and suffering would be barred by the limited threshold. See generally, Continental Insurance Co. v. McClelland, 288 N.J. Super. 185 (App. Div. 1996).

Premises Liability – Lease Absolves Property Owner

In a personal injury case arising from a pedestrian fall-down on black ice in a parking lot, the Appellate Division recently held that the property owner was not liable to the plaintiff where the lease agreement expressly delegated snow and ice removal to the tenant, and the area where plaintiff fell was within the exclusive control of the tenant. Underhill v. Borough of Caldwell, et al, - N.J. Super. – (App. Div. 2020).

Plaintiff, Richard Underhill, fell on black ice in a parking lot leased by private owners to the Borough of Caldwell. Plaintiff and his wife sued the Borough and the private owners alleging negligent failure to maintain the parking lot and the internal driveway connected to it in a safe condition. 

The written lease between the owners and the Borough expressly delegated to the Borough the responsibility to clear the premises of ice and snow. Plaintiffs argued that the property owners had a non-delegable duty under tort law to keep the premises safe from accumulated ice and snow, but the Appellate Division upheld the granting of summary judgment to the property owner.

The Court noted that the lease explicitly delegated to the Borough the exclusive responsibility to remove snow and ice from the premises and relied upon the recent Supreme Court decision of Shields v. Ramslee Motors, 240 N.J. 479 (2020) to uphold the summary judgment finding.

Crucially, the Court noted that the accident did not occur on a public sidewalk which would trigger a non-delegable duty by the property owner to remove snow and ice. See Vasquez v. Mansol Realty Associates, Inc., 280 N.J. Super. 234 (App. Div. 1995). Instead, the accident occurred in a parking lot and an internal driveway connected to it, thus the lease controlled the owner’s duty. 

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.