Vol. 1, Issue 9
January 19, 2021
Happy New Year from Hardin Kundla McKeon & Poletto!
We hope you had a joyful and restful holiday season to conclude an unusual 2020. As we look forward to the New Year, there were a number of recent opinions closing out 2020: regarding the need for a plenary hearing by the trial court on a contract’s formation and execution to resolve a motion to compel arbitration, the impact of the Comparative Negligence Act on pro tanto credits was tackled by the Appellate Division in a medical malpractice matter, the Appellate Division declined a plaintiff’s attempt to revise the res ipsa loquitur doctrine requiring consideration of a plaintiff’s own potential negligence, and the Appellate Division affirmed dismissal of a medical malpractice claim for lack of medical or expert proof of emotional distress damages. Further, in two unpublished decisions, the Appellate Division addressed priority of coverage for PIP claims and whether the common knowledge exception to the Affidavit of Merit Act applied to a medical malpractice case. We hope these cases are of interest.
As always, we appreciate the chance to catch up with you and we hope you enjoy this first issue for 2021 of HKMP’s Case Alerts.
Knight v. Vivint Solar Developer, LLC, __ N.J. Super. __ (App. Div. 2020)

Plaintiff filed a complaint against a solar energy company and its salesperson alleging consumer fraud. The trial court granted defendants’ motion to compel arbitration finding the arbitrator should address plaintiff’s challenges to the agreement under Goffe v. Foulke Management Corp., 238 N.J. 191 (2019). The Appellate Division reversed and held that the trial court must first conduct a plenary hearing to determine threshold issues concerning the contract’s formation and execution; for example, plaintiff denied having selected a box indicating she agreed to arbitrate disputes. The appellate court found that an arbitrator was not empowered to determine plaintiff’s challenges to the formation and execution of the contract which went to whether the parties agreed to arbitrate claims. Thus, it was improper for the trial court to conclude under Goffe that the arbitrator must decide threshold issues regarding the agreement’s validity. 
Glassman v. Friedel, __ N.J. Super. __ (App. Div. 2020)
Plaintiff’s now deceased wife fell and sustained a fracture to her left ankle at a restaurant. She sued the restaurant then filed an amended complaint alleging malpractice against medical providers for alleged negligence during ankle surgery and post-operative complications followed by a fatal pulmonary embolism a month later due to alleged failure to provide appropriate anticoagulation medications. Plaintiff subsequently settled with the restaurant for $1.15 million. On that basis, the medical defendants cited Ciluffo v. Middlesex General Hospital, 146 N.J. Super. 476 (App. Div. 1977) to obtain a pro tanto credit against any potential damage award on the malpractice claims to plaintiff to avoid duplication of damages and plaintiff recovering a windfall. Plaintiff argued that even if the restaurant’s negligence was established, the Comparative Negligence Act applied to joint and successive tortfeasors replacing Ciluffo and eliminating any possibility of a pro tanto credit based on the restaurant’s settlement. The trial court granted defendants’ motion and denied plaintiff’s motion for reconsideration. The Appellate Division granted leave to appeal.
The Appellate Division noted that while Ciluffo has been cited approvingly since the passage of the Comparative Negligence Act, “it has never endorsed application of a pro tanto credit to a successive tortfeasor based on a plaintiff’s settlement with an initial tortfeasor.” The court concluded that application of a pro tanto credit as a matter of common law in a negligence case, whether involving joint or successive tortfeasors, is not supported by current law. While disagreeing with plaintiff’s blanket statement regarding the requirements of the Comparative Negligence Act, the court determined that the Act does further the legislative objective of comparative responsibility "by requiring juries to apportion damages between . . . successive [events] and to apportion fault among the parties responsible for each [event]." Therefore, the Court reversed and vacated the orders under review. The court noted that in a scenario where the only remaining defendants were alleged to have caused subsequent injuries, the jury must apportion the total amount of damages caused by the initial injuries and those caused by the medical defendant’s subsequent alleged negligence, so that the remaining medical defendants were not responsible to pay for injuries they did not proximately cause. Still, the court viewed the Act as reflecting “monumental changes in common law” and “specifically disapprove[d]” application of Ciluffo’s holding regarding the award of a potential pro tanto credit in such circumstances.
Pannucci v. Edgewood Park Senior Housing – Phase 1, LLC, __ N.J. Super __ (App. Div. 2020)
The Appellate Division recently affirmed an order of the trial court, refusing to modify the doctrine of res ipsa loquitur requiring, in part, a plaintiff to show that her conduct is not an alternative explanation for the accident, because absent that showing, it may be unreasonable to infer that a defendant “probably acted negligently.”
Plaintiff was walking her leashed dog to an elevator in her apartment building when the elevator doors started to close so plaintiff forcibly used her body to stop the doors from closing sustaining injuries. Plaintiff sued her landlord, its manager, and the company that serviced the elevator. Defendants were granted summary judgment as plaintiff never experienced an issue with the elevator prior, no operating failures were found in biannual state inspections, and neither the building superintendent nor the manager was on notice of any issue with the elevator. The elevator was also regularly serviced. The trial court found res ipsa loquitur did not apply because plaintiff failed to meet the third prong of showing her conduct was not a reason for the accident since she had forcibly stopped the elevator doors.
Plaintiff argued for the first time on appeal that summary judgment should be reversed as the third prong of the res ipsa doctrine (whether there is proof of plaintiff’s negligence) was at odds with New Jersey’s Comparative Negligence Act. The Appellate Division acknowledged that some jurisdictions have modified the doctrine as argued by plaintiff, but the court declined because modifying the doctrine would undo well-settled Supreme Court precedent, and the Supreme Court had made no suggestion that it would endorse such a change. Since plaintiff failed to prove that her injury did not result from her “own voluntary act or neglect” summary judgment was affirmed.
Clark v. Nenna, __ N.J. Super. __ (App. Div. 2020)
The Appellate Division recently affirmed a dismissal of medical malpractice case finding plaintiff failed to support his claim for emotional distress damages. Plaintiff, a paraplegic, broke his femur following which the defendant doctor performed surgery implanting screws and washers to stabilize the bone. Due to discomfort, defendant performed a later procedure and successfully extracted the screws, but the washers were embedded in scar tissue, so defendant made a “conscious decision” to leave them in to avoid the risk of a post-op infection. Defendant neither informed plaintiff pre-op or post-op of this decision, nor did he document the choice to leave the washers in his surgical report. Plaintiff learned of the retained washers in his leg four years later when he had x-rays performed related to other medical concerns. Plaintiff filed suit alleging emotion distress damages. Defendant moved to dismiss following the service of expert reports for plaintiff’s failure to provide expert proof of mental anguish knowing a foreign object existed in plaintiff’s body. The motion was granted and the Appellate Division affirmed. Plaintiff did not allege intentional or willful conduct by the doctor to obviate the need for medical or expert proof. Further, the nature of the harm did not present “an especial likelihood of genuine and serious mental distress” so dismissal was required for failure to produce medical or expert proof in support of the alleged emotional distress damages.
Cooper Hosp. Univ. Med. Ctr. v. Selective Ins. Co., Docket No. A-603-19T1 (N.J. Super. Ct. App. Div. Nov. 18, 2020) (per curiam)
The Appellate Division reversed an order of the trial court finding that, under present state and federal laws, defendant private insurance company did not have the responsibility of primary payment for hospital services rendered for ongoing medical injuries arising from a 1977 automobile accident. The insured filed suit against the defendant insurance carrier in 1979 and secured an order obligating defendant to pay his medical expenses under his father’s PIP policy. Thereafter, defendant paid most of its insured’s medical expenses arising from the 1977 accident. However, in 2015, defendant sent the insured a letter advising him that under §111 of the Medicare, Medicaid, & SHIP Extension Act (MMSEA) of 2007, and the Medicare Second Payer Statute (MSP), 42 U.S.C. §1395y(b), Medicare was the primary payer on no-fault PIP claims where the date of the injury was prior to 12/5/1980. The insured received treatment at plaintiff’s hospital between February and May 2016, which plaintiff then billed defendant in the amount of $853,663. Defendant denied payment on the basis that Medicare was the primary payer so plaintiff filed suit. The trial court granted plaintiff’s motion for summary judgment finding under N.J.S.A. 39:6A-4 the defendant insurance carrier was responsible for PIP benefits covering the bodily injury that resulted from the automobile accident and that no other limitations were contained in that part of the statute. The Appellate Division found the trial judge erred with this analysis. Although the MSP Act mandates that Medicare shall be the secondary payer, the Act’s exception for injuries arising prior to 1980 rendered it inapplicable. Thus, Medicare, as the primary payer would pay plaintiff up to its limits and defendant would only be required to pay the $12,236 Medicare did not cover.
Peters v. John, Docket No. A-227-19T1 (N.J. Super. Ct. App. Div. Dec. 7, 2020) (per curiam)
The Appellate Division recently affirmed a trial court order, finding the “common knowledge” exception did not apply to the requirement of an affidavit of merit (AOM) in a medical malpractice case. The defendant doctor performed bilateral knee surgery on plaintiff following which plaintiff complained of excruciating pain in the left knee. The doctor prescribed a cream for plaintiff’s knee, but did not order an MRI, CT or any other diagnostic scans. The doctor subsequently referred plaintiff to a co-defendant doctor who prescribed plaintiff cortisone shots, but also refrained from ordering any diagnostic scans of plaintiff’s knee. Plaintiff filed suit alleging faulty knee replacement surgery and failure to perform any corrective knee replacement surgery or address her complaints of pain in the knee. Plaintiff was unable to obtain an AOM but argued in opposition to defendants’ motions to dismiss that the common knowledge exception applied. The Appellate Division affirmed the trial court’s order granting the defendants’ motions as jurors cannot be expected to know the particulars of how to perform knee replacement surgery, criteria for selecting hardware, and post-operation testing procedures.
As always, if you have any questions regarding any of the cases in this issue of Case Alerts, or if HKMP can be of service to you, then please contact us at or 973-912-5222.
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