Court affirmed dismissal of med mal where plaintiff's expert did not possess the threshold qualifications

 Court affirmed dismissal of med mal where plaintiff's expert did not possess the threshold qualifications 

Plaintiff appealed the dismissal of his medical malpractice action. Plaintiff alleged defendant doctor prescribed an incorrect and excessive dosage of a drug for hypertension which caused him to suffer a syncopal event and he fell and was injured. Defendants argued plaintiff's expert, who provided the affidavit of merit, did not satisfy the requirements under N.J.S.A 2A:53A-41(a) to be qualified to render an expert opinion. Defendant argued plaintiff's expert did not specialize in the same specialty as defendant. Defendant was board certified in internal medicine and specialized in the practice of internal medicine. Plaintiff's expert was board certified in the American Board of Medical Specialties specialty of internal medicine but specialized in interventional cardiology and cardiovascular disease at the time of the incident. Motion court agreed plaintiff's expert did not possess the threshold qualifications required under subsection (a). Court agreed and found "specialized" in the statute required the expert to concentrate his or her practice of medicine in the same specialty as the defendant physician at the time of the alleged malpractice; merely having the same board certification was not sufficient.

SHARYN PRIMMER VS. MICHAEL HARRISON (FM-18-0709-19, SOMERSET COUNTY AND STATEWIDE) (A-1590-20)

 SHARYN PRIMMER VS. MICHAEL HARRISON (FM-18-0709-19, SOMERSET COUNTY AND STATEWIDE) (A-1590-20)

Defendant appealed from the trial court's finding that the parties' written palimony agreement was valid because, among other reasons, the court found both parties were represented by counsel. While this appeal was pending, the Supreme Court decided Moynihan v. Lynch, 250 N.J. 60 (2022) and struck down as unconstitutional a provision of the Statute of Frauds, N.J.S.A. 25:1-5(h), requiring parties to a palimony agreement receive the advice of counsel for such agreements to be valid. The court granted defendant's request for supplemental briefing as to whether Moynihan applied retroactively. The court affirms the trial court's findings upholding the parties' agreement and concludes Moynihan applies retroactively because of the constitutional dimensions of the Supreme Court's holding, which also furthers our State's jurisprudence encouraging the settlement of disputes in family matters.

KATHLEEN DIFIORE VS. TOMO PEZIC, ET AL. DORA DELEON VS. THE ACHILLES FOOT AND ANKLE GROUP, ET AL. JORGE REMACHE-ROBALINO VS. NADER BOULOS, M.D., ET AL. (L-0123-19, L-2412-20, and L-1929-19, ESSEX AND HUDSON COUNTIES AND STATEWIDE) (CONSOLIDATED) (A-2826-20/A-0367-21/A-1331-21)

 KATHLEEN DIFIORE VS. TOMO PEZIC, ET AL. DORA DELEON VS. THE ACHILLES FOOT AND ANKLE GROUP, ET AL. JORGE REMACHE-ROBALINO VS. NADER BOULOS, M.D., ET AL. (L-0123-19, L-2412-20, and L-1929-19, ESSEX AND HUDSON COUNTIES AND STATEWIDE) (CONSOLIDATED) (A-2826-20/A-0367-21/A-1331-21)

These three consolidated appeals in personal injury cases pose related but distinct questions involving the application of Rule 4:19. The appeals concern when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments or language barriers can be accompanied by a third party to a defense medical examination ("DME"), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.

With the input of the parties' counsel and amici, the court revisits and updates the opinion from twenty-four years ago in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998) (authorizing the "unobtrusive" audio recording of a neuropsychological DME of a plaintiff who claimed in her civil action that she was suffering emotional distress). The court also considers 2016 Policy Statement of the American Board of Professional Neuropsychology disfavoring the third-party observation and recording of DMEs and urging practitioners to refuse such conditions except where required by law.

In the absence of more specific guidance within the present text of Rule 4:19, the court adopts adopt the following holdings.

First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis,with no absolute prohibitions or entitlements.

Second, despite contrary language in Carley, it shall be the plaintiff's burden to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.

Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged.

Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.

The three cases are accordingly remanded to the respective trial courts to reconsider the conditions of each DME, consistent with the guidance expressed in this opinion.

T.B., AN INFANT BY HIS GUARDIAN AD LITEM, E.B., ET AL. VS. ALEXIS NOVIA, ET AL. (L-8651-19, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1405-21/

 T.B., AN INFANT BY HIS GUARDIAN AD LITEM, E.B., ET AL. VS. ALEXIS NOVIA, ET AL. (L-8651-19, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1405-21/A-1406-21)

This case involved a high school student injured when struck by another defendant's car while walking home from school. Because the student lived less than two and a half miles from his high school, he was not eligible for mandatory busing under N.J.S.A. 18A:39-1 and, therefore, was required to walk to and from school.

The Board adopted various policies and procedures related to student busing transportation. The Board also adopted procedures for parents seeking to contest the designation of a route as hazardous. The procedure required the parent to contact the Board's transportation supervisor to discuss the route designation and any transportation issues.

Following these policies and applying its adopted criteria, the Board determined the route taken by this student to and from school on the day of the accident was non-hazardous for high school students.

Sometime between 2010 and 2016, the Township assigned a traffic safety officer to work with the Board in evaluating the safety of various student walking routes. Due to cuts to the Board's school budget, the Board asked the Township's traffic safety officer to determine whether busing costs could be reduced. The Township's traffic safety officer determined the route travelled by this student on the day of the accident to be dangerous for students of any age, including high school students, and so advised the Board. The Board denied receiving such a recommendation.

The student and his parents filed suit alleging negligence against the Board, the Township, and the driver. The Board and the Township moved for summary judgment.

The court affirmed the denial of summary judgment to the Board. The court concluded a jury would have to resolve certain factual disputes regarding the Board's duty to plaintiffs, if any, and whether the Board breached such duties. The court identified the following factual issues regarding the Board's conduct: whether the Board breached a duty to plaintiffs by not adhering to its policies and procedures regarding the designation of hazardous routes; whether the Board violated its procedure governing situations where a parent seeks to contest the designation of a hazardous route or other busing issues; and whether the Board should have reevaluated the specific road travelled as a matter of general practice or based on information provided by the Township's traffic safety officer.

Additionally, the court determined a jury must assess whether the Board's failure to undertake these actions constituted a ministerial act, which is not entitled to immunity, or a discretionary act, which is entitled to immunity. The court agreed the motion judge properly denied summary judgment to the Board because there were factual disputes regarding whether the Board's actions or inactions related to the student's transportation were reasonable under the circumstances after considering the Board's obligations under its own transportation policies.

The court reversed the denial of summary judgment to the Township. Under N.J.S.A. 18A:39-1.5(b), the Township had no duty beyond working in conjunction with the Board to determine criteria for the designation of a hazardous route and the Board admitted the Township satisfied its legal duty under the statute. The Board also conceded it made the decisions related to student transportation and designation of hazardous routes without input or participation by the Township.