Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee, GP on Personal Injury and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals.

New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Friday, September 16, 2022

Birth Injury Cases

Birth Injury Cases

 More at https://www.njlaws.com/birth_injury_cases.htm

In Birth Injury cases, the following portions of the law will be read by the Judge to the jurors, word for word......


The Trial Judge will read the following instructions to the jury prior to the jury deciding damages and negligence:


Given what I have just said, it is important for you to know the standard of care which a general practitioner/specialist in [insert appropriate specialty description, if applicable] is required to observe in his/her treatment of a patient under the circumstances of this case. Based upon common knowledge alone, and without technical training, jurors normally cannot know what conduct constitutes standard medical practice. Therefore, the standard of practice by which a physician's conduct is to be judged must be furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on medical subjects.


You as jurors should not speculate or guess about the standards of care by which the defendant physician(s) should have conducted himself/herself/themselves in the diagnosis and treatment of the plaintiff. Rather, you must determine the applicable medical standard from the testimony of the expert witness(es) you have heard in this case.(1)


Where there is a conflict in the testimony of the medical experts on a subject, it is for you the jury to resolve that conflict using the same guidelines in determining credibility that I mentioned earlier. You are not required to accept arbitrarily the opinions offered. You should consider the expert's qualifications, training, and experience, as well as his/her understanding of the matters to which he/she or she testified.


Where an expert has offered an opinion upon an assumption that certain facts are true, it is for you, the jury, to decide whether the facts upon which the opinion is based are true. The value and weight of an expert's testimony in such instances is dependent upon, and no stronger than, the facts upon which it is predicated.


When determining the applicable standard of care, you must focus on accepted standards of practice in [insert general practice or specialty involved] and not on the personal subjective belief or practice of the defendant doctor.(2)


The law recognizes that the practice of medicine is not an exact science. Therefore, the practice of medicine according to accepted medical standards may not prevent a poor or unanticipated result.(3) Therefore, whether the defendant doctor was negligent depends not on the outcome, but on whether he/she adhered to or departed from the applicable standard of care. Ibid.


Note to Judge:


Where the defendant has satisfied the burden of proving that medical judgment is involved in the case, insert Charge 5.36G, Medical Judgment, here.


If you find that the defendant(s) has (have) complied with the accepted standard of care, then he/she is not liable to the plaintiff regardless of the result. On the other hand, if you find that the defendant(s) has (have) deviated from the standard of care resulting in injury or damage to plaintiff, then you should find defendant negligent and return a verdict for plaintiff."

More information at KennethVercammen.com/medical_malpractice.htm

Sunday, July 3, 2022

case dismissing the Survivor's Act action count of the complaint where not filled timely

 

https://www.law.com/njlawjournal/almID/1655237863NJA214320/?download=a2143-20_061422.pdf


DAMARIS CHANDLER,
as administrator ad prosequendum of the estate of JOSEPH E. CHANDLER, JR., deceased,

Plaintiff-Respondent, v.

TODD W. KASPER, Defendant-Appellant,

and
THOMAS C. KASPER,

Defendant, and

KAZZ, INC., d/b/a KASPER'S CORNER and KASPER AUTOMOTIVE,

Defendants-Respondents. _____________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2143-20

Argued September 13, 2021 – Decided October 7, 2021

Before Judges Sabatino and Rothstadt.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4710-18.

Neal A. Thakkar argued the cause for appellant (Sweeney & Sheehan, PC, attorneys; Frank Gattuso and Jacqueline M. DiColo, on the briefs).

Robert Douglas Kuttner argued the cause for respondent Damaris Chandler.

Mark R. Sander argued the cause for respondent Kazz, Inc. (Thomas, Thomas & Hafer, LLP, attorneys; Mark R. Sander, of counsel and on the brief).

PER CURIAM
In this wrongful death, N.J.S.A. 2A:31-1 to -6, and Survivor's Act,

N.J.S.A. 2A:15-3, action, we granted defendants Todd W. Kasper, Kazz, Inc. d/b/a Kasper's Corner, and Kasper Automotive, leave to appeal from two January 22, 2021 orders entered by the Law Division, denying defendants' motion for partial summary judgment, and permitting plaintiff to amend her previously filed complaint to correct her standing by designating herself both as Administrator Ad Prosequendum and the General Administrator of her deceased father's estate. According to defendants' arguments before the motion judge and now on appeal, plaintiff could not have standing to bring the Survivor's Act

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action because no estate existed at the time she filed her complaint. And, by the time letters of administration were issued to plaintiff and she sought to amend her complaint, the statute of limitations for the Survivor's Act action ran years before. The motion judge acknowledged the deficiency in plaintiff's initial standing but still denied defendants' motion to dismiss as a matter of equity. We reverse that determination and remand for entry of orders dismissing plaintiff's Survivor's Act action for lack of standing because plaintiff's original complaint was a nullity and any amendment sought after the statute of limitations ran could not relate back to that complaint.

The undisputed facts giving rise to the complaint in this action are taken from the motion record and summarized as follows. The decedent, Joseph E. Chandler, was struck by an automobile while crossing a street on December 21, 2016. The vehicle that struck the decedent was driven by defendant Todd W. Kasper and owned by defendant Thomas C. Kasper. As a result of being struck by that vehicle, the decedent suffered significant injuries and passed away six days later.

Just prior to the statute of limitations running as to the decedent's and his heirs' claims, on December 18, 2018, the decedent's daughter, plaintiff Damaris Chandler, filed a two-count complaint as Administrator Ad Prosequendum of

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her father's estate. The complaint alleged that the decedent died on December 27, 2016, intestate and that plaintiff had been appointed as Administrator Ad Prosequendum prior to the filing of the complaint. The first count asserted a claim under the Survivor's Act for the personal injuries and pain and suffering the decedent experienced prior to his death. The second count asserted a wrongful death action, which claimed that the decedent's daughters, plaintiff and India Ruhlman, his son Kerri Chandler, and his other "survivors and next of kin" were entitled to damages. In response, defendants filed answers to the complaint. Defendants Todd and Thomas Kasper's answer asserted as a separate defense that plaintiff's claims were statutorily barred by both the wrongful death statute and by the Survivor's Act. Thereafter the parties engaged in discovery. At no time prior to the filing of the subject summary judgment motions did defendants otherwise assert that plaintiff lacked standing to bring the Survivor's Act action.

Thereafter, in November 2020, defendants filed a motion for summary judgment seeking dismissal of the Survivor's Act action because plaintiff lacked standing to bring that claim as letters of general administration had never been issued to her. Plaintiff filed opposition to the motion and a cross-motion to file

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a second amendment complaint to reflect that on December 8, 2020, plaintiff obtained letters of general administration.

In a certification filed in support of her cross-motion and in opposition to defendants' motion, plaintiff explained that there was a delay in her being able to seek appointment as both Administrator Ad Prosequendum and as General Administrator of her father's estate due to disagreements between her and her siblings. Moreover, she understood from discussions with representatives of the county surrogate's office that because there were no assets in the estate, it was only necessary for her to be appointed as Administrator Ad Prosequendum to file the lawsuit and later be appointed as General Administrator to distribute any recovery. According to plaintiff, only when the estate had assets would she need to be appointed as general administrator, which she began to pursue only when defendants "made a small offer in mediation" to settle this case in August 2020. However, it took additional time to persuade her siblings to agree to her appointment.

After further submissions, the motion judge considered the parties' oral arguments on January 22, 2021. Afterward, the motion judge denied defendants' motion and granted plaintiff's cross-motion, placing his reasons on the record that same day. In his oral decision, the motion judge discussed the case law

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relied on by the parties and raised by the judge, before concluding that plaintiff acted diligently and "provided [defendants] timely notice of the [Survivor's Act] claim by the initial complaint and . . . perhaps there's a defect in the standing of . . . plaintiff, but [she] was seeking to proceed diligently. [And,] New Jersey Law holds that it would be inequitable to deny [a] party their day in court because of ignorance."

The judge also determined that "[a] deceased party['s] claim[] can only proceed through either [A]dministration [A]d [Proseqeundum] or through an estate being raised." He stated that defendants' argument as to standing was at best a "technical argument" and that "[s]tatute of limitations defenses are not permitted where mechanical application would inflict an obvious and unnecessary harm on . . . the party who holds the claim without advancing the

legitimate purpose." And, according to the judge "[t]o deny a relation back . . . serves no legitimate purpose." The judge also relied on the fact that the parties participated in an arbitration and in discovery for years without defendants raising any issues as to standing. However, the judge found that "because standing's a threshold issue [that is] very similar to jurisdiction, it cannot be waived." Nevertheless, a defect in standing did not "mandate [] . . . the sanction of dismissal."

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The judge also found support in the fact that plaintiff had difficulty in pursuing the issuance of letters of general administration because of disagreements between her and her siblings. He found that the siblings only agreed to renounce their rights to being named Administrator Ad Prosequendum immediately before the filing of the complaint, but "they wouldn't permit full representation of the estate by [plaintiff.]" Moreover, plaintiff relied on information she received from the surrogate's office that seemed to indicate that she could initially pursue the action as Administrator Ad Prosequendum and later could seek letters of administration that would allow for distribution of any funds that may be recovered in the action. It was not until December of 2020 that plaintiff's siblings renounced and allowed her to proceed to seek letters of administration. Therefore, the judge concluded that he should "permit the cure of the standing issue" by allowing the amendment of the complaint to relate back to remedy any issue as to standing. This appeal followed.

On appeal, defendants challenged the judge's legal conclusion that despite the running of the statute of limitations plaintiff should be allowed to amend the complaint to relate back to its initial filing. "Because the question presented, whether decedent's estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in [plaintiff's]

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name [as Administrator Ad Prosequendum years after the running of the statute of limitations] is solely a question of law, our review is de novo." Repko v. Our Lady of Lourdes Med. Ctr. Inc., 464 N.J. Super. 570, 574 (App. Div. 2020).

In Repko, the plaintiff's attorney had filed a complaint in the name of his deceased client without knowing she was dead. When he learned of her passing, he sought to amend the complaint to substitute the client's estate and to add a claim under the Survivor's Act, but did so three years after the cause of action arose and after the statute of limitations had run. In our opinion, we reversed the denial of defendant's motion to dismiss the complaint as barred by the statute of limitations and remanded for the entry of an order dismissing the complaint with prejudice. Id. at 578. There, we observed that the original complaint was a "nullity" because a deceased person cannot be a plaintiff. Id. at 575. We concluded there was nothing for an amendment of the complaint to relate back to, which warranted dismissal of the Survivor's Act claim. Id. at 573.

In the present action, the motion judge and plaintiff on appeal rejected defendants' argument that our holding in Repko was applicable to this case. We disagree.

At the outset, we note the important distinction between a wrongful death action and a Survivor's Act action; the former belonging to the individual

   

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survivors of the decedent and the later belonging only to the decedent's estate. "[T]he Survivor's Act preserves to the decedent's estate any personal cause of action that decedent would have had if he or she would have survived." Smith v. Whitaker, 160 N.J. 221, 233 (1999). The Survivor's Act permits only an "executor, suing on behalf of [an] estate, to recover the damages [the] testator would have had if [the testator] was living." Repko, 464 N.J. Super. at 577 (quoting Smith, 160 N.J. at 233). On the other hand, a wrongful death action must "be brought in the name of an [A]dministrator [A]d [P]rosequendum of the decedent for whose death damages are sought," or by an executor where the decedent's will has been probated, N.J.S.A. 2A:31-2, and any recovery belongs to the decedent's heirs. See N.J.S.A. 2A:31-4.

As explained by Judge Milton A. Feller many years ago in Kern v. Kogan, 93 N.J. Super. 459 (Law Div. 1967), there is a significant difference between the two actions:

    

The death statute gives to the personal representatives a cause of action beyond that which the deceased would have had if he had survived, and based upon a different principle, a new right of action. The recovery goes, not to the estate of the deceased person, but to certain designated persons or next of kin. In the recovery the executor or administrator as such has no interest; the fund is not liable to the debts of the deceased, nor is it subject to disposition by will, for the reason that the primary concern of the [A]ct . . . is to provide for those

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who may have been the dependents of the deceased. . . .

[The Survivor's Act] contemplates compensation to the deceased person's estate. It is in the interval between injury and death only that loss can accrue to the estate, and in that alone is the personal representative interested. . . . The damages for personal injury and the expense of care, nursing, medical attendance, hospital and other proper charges incident to an injury as well as the loss of earnings in the life of the deceased are the loss to his estate and not to [his widow or next of kin].

[Id. at 471-72 (citation omitted).]
"Under these acts, the [A]dministrator Ad [P]rosequendum is the proper

party to bring a lawful death action and a [G]eneral [A]dministrator is the proper party to institute a survival action." Id. at 473.

Notably the Survivor's Act includes a provision "to toll any statute of limitations on a claim belonging to a decedent for up to six months following death for the 'salutary purpose of providing executors and administrators with a limited period of time after death to evaluate potential claims available to the estate.'" Repko, 464 N.J. Super. at 577 (quoting Warren v. Muenzen, 448 N.J. Super. 52, 67-68 (App. Div. 2016) (citing N.J.S.A. 2A:14-23.1)).

Applying these well settled principals to the facts in the matter before us, we must reverse the motion judge's determination that the complaint in this matter could have been amended to correct what was obviously plaintiff's lack

 

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of standing to bring the Survivor's Action in her capacity as Administrator Ad Prosequendum. Her reasons for not pursuing letters of general administration are of no moment. Like the complaint filed on behalf of the deceased plaintiff in Repko, here, the filing of the complaint prior to the establishment of an estate was a "nullity." Id. at 573. Any delay caused by a dispute among the heirs or siblings could have been avoided with the filing of an appropriate probate action long before the statute of limitations expired for the filing of the Survivor's Act claim, which as noted provides for a tolling of that time period to allow for such arrangements to be made or issues to be addressed.

As we noted in Repko, the "issue . . . of standing [is] succinctly defined . . . as 'the legal right to set judicial machinery in motion,'" id. at 574 (quoting Eder Bros. v. Wine Merchs. of Conn., Inc., 880 A.2d 138, 143 (Conn. 2005)). Here, plaintiff did not have that legal right as to the Survivor's Act action at the time the complaint was filed and did not acquire it until after the statute of limitations had run on the estate's claim under that act. Regardless of the fact that defendants had notice of the claim through service of the original complaint, that pleading remained a nullity and could not have been asserted once the statute of limitations had run. Although we appreciate the motion

  

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judge's endeavor to attain an equitable result, the governing law simply does not authorize it.

Reversed and remanded for entry of an order dismissing the Survivor's Act action count of the complaint.


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KENNETH  VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 
2053 Woodbridge Ave.,Edison, NJ 08817
(Phone) 732-572-0500
(Fax)    732-572-0030 
www.njlaws .com


Friday, July 1, 2022

No affidavit of merit required in suit against realtor MARIA PENDONDJIS; SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MONMOUTH COUNTY Plaintiff DOCKET NO. MON-L-3206-21 v. CIVIL ACTION FOX & ROACH REALTORS

 No affidavit of merit required in suit against realtor

MARIA PENDONDJIS; SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MONMOUTH COUNTY

Plaintiff DOCKET NO. MON-L-3206-21 v. CIVIL ACTION

FOX & ROACH REALTORS; FJ 23 LLC; ORDER HOMESTARR REALTY; ARRA WOODSON;
ABC, INC.; DEF, INC., JOHN and JANE DOES
I-V, fictitious defendants,

Defendants

And
FJ 23, LLC,

Defendant and Third-Party Plaintiff v.

ARRA WOODSON; HOMESTARR REALTY, Third-Party Defendants

Statement of Reasons

This motion to dismiss presents a question of first impression: whether an affidavit of merit is required pursuant to N.J.S.A. 2A:53A-27 for a personal injury matter asserted against a licensed realtor where such license is not specifically enumerated in the statutory definition of “licensed person” in N.J.S.A. 2A:53A-26. For the reasons that follow, including traditional canons of statutory construction, in the absence of a specific reference to realtors or other real estate professionals in the statutory definition of “licensed person,” this court holds that an affidavit of merit is not required and, accordingly, the motion to dismiss is denied.

I.
The underlying facts as gleaned from the complaint are straightforward. In April 2021,

Maria Pendondjis attended an open house. The property was listed for sale by the movant here, Fox & Roach Realtors (“Fox & Roach”). Pendondjis was accompanied by her own realtor, defendant Arra Woodson, a real estate agent with defendant Homestarr Realty. During her tour of the home, Pendondjis fell, suffering injury. This suit followed.

Fox & Roach now moves to dismiss the matter for failure to state a claim, invoking N.J.S.A. 2A:53A-26, the so-called Affidavit of Merit Statute (“AoM Statute”).

II.
The AoM Statute, specifically N.J.S.A. 2A:53A-27, provides that in any action for damages for personal injury allegedly resulting from the malpractice or negligence of a 
licensed

person,” a plaintiff shall timely provide “an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the . . . work that is the subject of the complaint, fell outside acceptable professional or occupation standards or treatment.”

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The AoM Statute’s purpose is simple – requiring a “threshold showing” to ensure that a malpractice claim has some semblance of merit. In re Petition of Hall, 147 N.J. 379, 391 (1997). Thus, the AoM Statute weeds out the frivolous. A.T. v. Cohen, 231 N.J. 337, 346 (2017). The purpose is not to “bar[] meritorious claims brought in good faith,” Paragon Constrs., Inc. v. Peachtree Condo Ass’n, 202 N.J. 415, 421-22 (2010) (quotation omitted), nor to “create aminefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims,” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003). Rather, the AoM Statute “curtail[s] insubstantial claims through the claimant’s inability to present a supportive affidavit early on, before significant litigation time and expense are incurred.” A.T., 231 N.J. at 348.

Failure to provide the required affidavit of merit is a failure to state a cause of action and requires dismissal with prejudice, absent certain equitable circumstances, designed to “temper the draconian results of an inflexible application of the statute.” Id., 231 N.J. at 346 (quotations and citations omitted).

The foregoing principles are not and, indeed, cannot be disputed. Rather, the dispute here is whether a realtor or other licensed real estate professional is subject to the AoM Statute.

That analysis begins with the statute’s text. Most recently amended in 2019, N.J.S.A. 2A:53A-26 defines “licensed person” as “any person who is licensed as” one of 17 enumerated professions including an accountant, architect, attorney, engineer, land surveyor, pharmacist, veterinarian, insurance producer, midwife, site remediation professional, and a variety of medical professionals. Realtor, real estate agent, and real estate professional are not enumerated.

Where a question of statutory interpretation is posed, courts “begin with the statute’s plain language – our polestar in discerning the Legislature’s intent.” L.W. v. Toms River Reg’l

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Schs. Bd. of Educ., 189 N.J. 381, 400 (2007) (Zazzali, C.J.). “If the language is plain and clearly reveals the statute’s meaning, the Court’s sole function is to enforce the statute according to its terms.” Frugis v. Bracigliano, 177 N.J. 250, 280 (2003).

Plain statutory language “should be given its ordinary meaning.” Merin v. Maglaki, 126 N.J. 430, 434 (1992). Accordingly, it is only where a statute is “silent or ambiguous” that a court may properly consider the Legislature’s intent in interpreting a statute. See Accountemps v. Birch Tree Group, 115 N.J. 614, 622 (1989); Union County Bd. of Chosen Freeholders v. Union County Park Comm’n, 41 N.J. 333, 337 (1964).

Stated alternatively, a court’s function is not to “rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language.” O’Connell v. State, 171 N.J. 484, 488 (2002); accord Crster v. Bd. of Comm’rs of Newark, 9 N.J. 225, 230 (1952) (observing it is not judiciary’s function to “write in additional qualification which the Legislature pointedly omitted in drafting its ownenactment”).

Particularly relevant here is the canon of statutory construction expressio unius est exclusior alterius, meaning “expression of one thing suggests the exclusion of another left unmentioned.” Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (2004). Boiled to its core, such is Pendondjis’ opposition here.

The Appellate Division has opined on this canon’s application to N.J.S.A. 2A:53A-26 in Saunders v. Capital Health System at Mercer, which addressed whether an affidavit of merit was required in a personal injury action against a licensed midwife – a profession, like realtor here, not enumerated in the statutory definition of “licensed person.” 398 N.J. Super. 500 (App. Div. 2008). The unanimous panel held that an affidavit of merit “is not required when licensed

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midwives, as well as other unspecified licensed professionals, are sued in their professional capacity.” Id. at 508 (emphasis added).

In so holding, Saunders observed that “[h]ad the Legislature intended N.J.S.A. 2A:53A- 26 to apply to other unspecified licensed health providers, it could easily have prefaced the licensed persons listed with the words ‘including but not limited to.’ It chose not to do so.” Ibid.1

The same result must occur here for the same reason. The Legislature chose, in narrow, yet plain, language to not include realtors, real estate agents, or real estate professionals in the 17 enumerated professionals expressly enumerated in N.J.S.A. 2A:53A-26’s definition of “licensed person.” Nothing in the statutory language indicates that the list is inclusive, as opposed to exclusive.Nothing indicates that the Legislature sought to cast a wide net to capture the myriad, unspecified, unenumerated licensed professionals regulated in New Jersey. Rather, the AoM Statute’s plain language is narrow and specific. That legislative decision to enumerate specific professions – as opposed to using broad catch-all language – is dispositive here.

Therefore, pursuant to the clear, express, plain, and unambiguous statutory language, an affidavit of merit is not required in a personal injury action against a realtor, real estate agent, or

Approximately six months following Saunders, legislation was introduced in the Assembly to include licensed midwives in the definition of “licensed professionals.” That legislation was subsequently re-introduced the next legislative session, ultimately being signed into law November 12, 2010.

Fox & Roach does not reference Saunders in its papers. Instead, Fox & Roach highlights Waller v. Lomax, 2010 N.J. Super. Unpub. LEXIS 1504 (App. Div. 2010), an unpublished, non- binding decision that applied the AoM Statute to a title insurance agent. Putting aside its unpublished status, the panel there found that the defendant acted in a role “the same or similar as that of an attorney” – a role conceded by the plaintiffs there. Accordingly, because a suit against an attorney would require an affidavit of merit, the panel affirmed the trial court’s conclusion that an affidavit of merit was required. Again, putting aside the unpublished nature of that decision, Waller is distinguishable in that there is no allegation that Fox & Roach was acting in a capacity “the same or similar” to an enumerated licensed professional here.

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real estate professional – professionals not specifically enumerated as “licensed persons” in N.J.S.A. 2A:53A-26.

Importantly, however, this conclusion, at this early stage of litigation, in no way comments on whether expert testimony may be needed to address the standard of care required by real estate professionals and whether such standard of care was breached here. See generally, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993).

Finally, Fox & Roach contends Presiding Judge Bauman’s case management order establishing a deadline for submission of an affidavit of merit changes the balance. That argument is without merit.

This contention is not supported by any legal authority. See 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011) (noting requirement that parties make “an adequate legal argument” in support of claims). More specifically, Fox & Roach fails to cite any authority that a case management order trumps a statute. Moreover, no argument is asserted as to how imposition of a deadline on a possible form of discovery creates a mandatory obligationto provide such. To be sure, Presiding Judge Bauman’s case management order can easily be read to implicitly set forth a deadline for an affidavit of merit, if required or necessary. Accordingly, this Court is unpersuaded by Fox & Roach’s unsupported contention.

Accordingly, for the foregoing reasons, Fox & Roach’s motion to dismiss is denied.

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Amputation and recovery for negligence

Amputation

Amputation is the removal of a body extremity by trauma or surgery. As a surgical measure, it is used to control pain or a disease process in the affected limb, such as malignancy or gangrene. In some cases, it is carried out on individuals as a preventative surgery for such problems. 

         Unlike many non-mammalian animals, (such as lizards which shed their tails), once removed, human extremities do not grow back. A transplant or a prosthesis are the only options for recovering the loss. See http://en.wikipedia.org/wiki/Amputation

       If you have been seriously and permanently injured as a result of negligence, consult a personal injury attorney. If an injury case is not the type we can handle, we will try to refer you to another competent trial attorney. More at https://www.njlaws.com/amputation.html?id=2626

Negligence - Injuries Caused by Neglect or Reckless Acts of Others

Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation

         No one plans on being injured in an accident, whether it is a car accident, a fall down, or other injury caused by negligence. Speak with a personal injury attorney immediately to retain all your rights. Businesses are responsible for the maintenance of their premises. It is the duty of the site manager to inspect and keep the property in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to workers and persons lawfully thereon. If there is negligence, the careless party could be liable for the injuries caused. 

         In the Event You or a Member of Your Family Suffers Serious Injury 

LEGAL ADVICE FROM INSURANCE COMPANIES: If an insurance adjuster asks you to sign a release or other legal document, and/or attempts to obtain a recorded statement in person or by telephone, and/or offers you legal advice or discourages you from speaking with a lawyer, BE CAUTIOUS! Insurance adjusters are not permitted to engage in the unauthorized practice of law. An injury attorney will offer advice that protects you, not the insurance company. It is the duty of the owner to properly and adequately inspect, maintain and keep the premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as an employee or business invitee in the exercise of due care on your part. If severely injured, and the negligence was of someone other than your employer, you can retain an attorney to file a lawsuit for damages, together with costs of suit. Injured people in lawsuits can demand trial by jury. Jury trials are not permitted in workers compensation cases. 

         The Appellate Division court in RAIMO v. FISCHERA __ NJ Super. __ docket 2201-03T5A held contractors duty of care for persons who come onto a construction site is governed by general negligence principles, which require a contractor to exercise reasonable care to maintain the site in a safe condition for any persons who the contractor may reasonably expect to come onto the site, rather than by the common law doctrine of premises liability, under which the landowners tort liability is determined by the injured persons classification as a business invitee, licensee, or trespasser.

WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED

1. Stop . . . do not leave the scene of the accident. CALL 911, tell them where the accident occurred and ask for medical help if needed. 2. Notify the property manager or owner, if possible. Insist they observe where you were injured. 3. Get names and addresses of all witnesses. Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down identifying features or the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses names to anyone but the police, your attorney or your insurance company. 4. While waiting for ambulance, write down- Accident Information Date __ Time __ Location __ Weather __ Area conditions __ 5. Summary of accident __ 6. Diagram of accident location 7. Seek medical care. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You will want it on record that you sought treatment right away, not in a week or so. 8. Write down name of Security Personnel, Police Officers, Department and Badge Number, Ambulance crew, etc. 9. Do not assign or accept blame for the accident. - The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address. - Be cooperative with the police. 10. Have immediate photos taken of accident site. 11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney At Law (732) 572-0500 When you need help the most, we will be ready to help you. 12. Never give a signed statement to the claims adjuster representing the property owners insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first. If you have been injured due to the negligence of someone:

It is important that you -- 1. DO NOT discuss your case with anyone except your doctors and attorney. 2. DO NOT make any statements or give out any information. 3. DO NOT sign any statements, reports, forms or papers of any kinds, . 4. DO NOT appear at police or other hearings without first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings. 5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case. 6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEYS WRITTEN PERMISSION. 7. You may have insurance coverages such as Workers Comp, Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies. 8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed. 9. Maintain accurate records of all information and data pertaining to your case. 10. If you or any witnesses should move, be sure to notify your attorney of the new address.

Financial Recovery if injured due to negligence of someone other than the employer

1. Kenneth Vercammen, Esq. Helps Injured persons A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, we will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself. Details on workers compensation cases are at the end of this article.

Clients should provide my office with the following 1. Any bills 2. All Hospital or doctor records in your possession 3. Photos of scars, cuts, bruises 4. Photos of damage to your clothes and property 5. Photos of accident site 6. Major Med Card 7. Paystub if lost time from work

2. Attorney- Client Confidential Relationship First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office at (732) 572-0500. We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.

3. Diary We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. Describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, you’re playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers. Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.

4. Record expenses You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date. Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.

5. Investigation and Filing of Civil Complaint Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an Answer within 35 days. Kenneth Vercammen's office generally does not file a Complaint until the treating doctor signs an affidavit of merit setting forth why the injury is permanent and the diagnostic tests upon which the permanent injury is based. You will need to speak with your doctor to ask if you have a permanent injury.

6. Interrogatory Questions and Discovery The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain Form A Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date. Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

7. Doctor/Treatment It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim. Tell your doctors all of your complaints. The doctors records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.

8. Bills Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.

9. Evidence Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.

10. Photographs Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.

11. Keep your attorney advised Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.

12. Lost wages Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.

13. New information In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.

14 Do not discuss the case The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone. Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

15. Questioning If any person approaches you with respect to this accident without your attorneys permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney’s office.

16. Investigation by Defendant Insurance Company Permit us to reiterate at this time that the oppositions insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimants past medical records.

The value of a case depends on the Permanent Injury, medical treatment and doctors reports Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendants liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.

Conclusion This is a great deal of information to absorb. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time. Call Kenneth Vercammen to schedule a confidential in-office consultation at (732) 572-0500.

 

 

 

Friday, May 13, 2022

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.

Sunday, May 8, 2022

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.