NEW REQUIREMENTS FOR RECORDING, THIRD-PARTY OBSERVATION OF INDEPENDENT MEDICAL EXAMINATIONS
DiFiore v. Pezic, ____ N.J. Super. ___ (App. Div. 2022)
The Appellate Division adopted more specific guidance regarding Rule 4:19, which permits an adverse party’s request of a plaintiff in a personal injury action to submit to a physical or mental examination, or a defense medical examination (DME). The Appellate Division held that personal injury plaintiffs in New Jersey are no longer automatically entitled to audio or visual recording, or to have a third-party observer present. The plaintiff must now seek court permission and bear the burden of proving why the recording or observation of the DME is necessary.
The holding came with a six-part framework: 1) disagreements over permission of third-party observers or recordings will be evaluated by trial judges on a case-by-case basis; 2) it is the plaintiff’s burden to justify why the presence and/or recording is appropriate; 3) recording options should include video that captures the actions and words of the examiner and the plaintiff; 4) if concerned about the revelation of proprietary information of the exam, the parties shall enter into a protective order; 5) third-parties permitted will have reasonable restrictions from interacting with the plaintiff or interfering with the exam; and 6) the examiner shall utilize a neutral or court selected interpreter if necessary.
The Appellate Division sought to balance concerns with the standards of professional care and duties of candor to the court. Ultimately, the court underscored the importance of DME to the civil litigation process in personal injury cases. In efforts to maintain the integrity and accuracy of these examinations, third-party observers and recordings must conform to the requirements the Appellate Division has now set forth.
EXPANDED SCOPE OF THE “SHAM AFFIDAVIT” DOCTRINE
Metro Marketing, LLC v. Nationwide Vehicle Assurance, Inc., ____ N.J. Super. ___ (App. Div. 2022)
The Appellate Division recently held that the “Sham Affidavit” Doctrine can extend to a “side-switching” situation. Plaintiffs were affiliated telemarketing companies selling extended service contracts to motor vehicle owners. Plaintiffs filed suit against the defendant competitors claiming the defendants hired away key managers and sales personnel, took customers, and obtained plaintiffs’ trade secrets. Defendants were granted summary judgment dismissing the complaint as the trial court disregarded several pieces of evidence plaintiffs offered in opposing the motion. On appeal, the Appellate Division considered whether the trial court properly disregarded a side-switching employee’s certifications relied upon by plaintiffs in opposing summary judgment.
The “Sham Affidavit” Doctrine arose out of summary judgment jurisprudence, as the doctrine permits judges to disregard a party’s self-serving certifications that directly contradict that party’s prior representations attempting to create an issue of fact. These certifications may be “perceived as a sham” and should not preclude a grant of summary judgment.
Here, the trial court disregarded two pieces of evidence with reference to the doctrine. The first was a recorded phone call of a former employee speaking with an agent of the plaintiff company. The individual, unaware of the recording, admitted involvement with competitor company before termination of his employment. The second piece of evidence was a certification by another former employee of the plaintiffs. In this certification, after defendant had returned to employment with the plaintiff company, the individual contradicted his prior deposition testimony without any reasonable explanation exemplifying “side-switching”.
The Appellate Division held as a matter of first impression in the State of New Jersey that the “Sham Affidavit” doctrine can apply to a certification or an affidavit by a deponent who has switched sides by becoming an employee of the opposing party. Accordingly, the Appellate Division affirmed the trial court decision in disregarding the certification. The Appellate Division also held the doctrine was inapplicable to the recorded phone call which was made well before the summary judgment motion and predated plaintiffs’ first amended complaint.
In sum, the Appellate Division held the doctrine can extend when (1) a codefendant is deposed; (2) that deponent thereafter obtains a job with the plaintiff; (3) the deponent then aids his new employer by signing certifications recanting his deposition testimony; and (4) the plaintiff offers those certifications in opposing summary judgment motions by the other defendants.
ARBITRATION CLAUSES IN RECREATIONAL PARK AGREEMENTS – TWO CASES REGARDING SKY ZONE TRAMPOLINE PARK ARBITRATION PROVISION
Perez v. Sky Zone LLC, ___N.J. Super. ___ (App. Div. 2022)
The Appellate Division recently affirmed in part, reversed in part, and remanded a case involving the enforcement of an arbitration provision at the Sky Zone Trampoline Park in Springfield, New Jersey. Upon arrival and check in, plaintiff signed a Participation Agreement, Release and Assumption containing a standard arbitration provision and severability clause. After plaintiff filed suit alleging physical injuries, the trial court granted Sky Zone’s motion to dismiss plaintiff’s complaint and compel arbitration. The trial court held that the claims against Fun Spot Manufacturing, LLC and Abeo North America, Inc. should be compelled to arbitration as well, reasoning that Fun Spot and Abeo were agents of Sky Zone.
Plaintiff appealed and argued that the arbitration clause was unenforceable because JAMS, the named arbitrator, was unavailable and the agreement contained other allegedly unenforceable provisions. Upon review de novo, the Appellate Division affirmed the trial court’s holding enforcing the arbitration provision for defendant Sky Zone. Plaintiff’s first argument was undermined by Section 5 of the Federal Arbitration Act, stating the court has authority to designate an arbitrator in the event of lapse or vacancy. 9 U.S.C. § 5. Plaintiffs second argument was based on a misconception of the trial court’s ruling. The trial court did not sever other provisions but comported with the requirements of law by delegating validity determinations as a matter for the arbitrator.
Lastly, the Appellate Division reversed as to compelling arbitration of plaintiff’s claims against Abeo and Fun Spot. The trial court erred by failing to make any factual findings or analysis that Fun Spot or Abeo are a proper agent of Sky Zone. On remand, the court directed that Fun Spot and Abeo could agree to arbitrate their claims, but only with plaintiff’s unambiguous assent.
Matullo v. Skyzone Trampoline Park, ____ N.J. Super. ___ (App. Div. 2022)
The Appellate Division also addressed the enforceability of an arbitration provision signed by a fifteen-year-old at the Sky Zone Trampoline Park in Lakewood, New Jersey. The Appellate Division held that the arbitration provision was not enforceable, reversing and vacating the trial court order granting a motion to compel arbitration. The court held that a party has a right to disaffirm an agreement signed when that party is a minor, and the limited exceptions to that right did not apply in this case.
When plaintiff signed the agreement, he listed himself twice, as both an adult and a minor with two different years of birth. The general rule recognized in New Jersey is that minor can disaffirm a contract and avoid being bound by its terms, stemming from the notion that minors do not have the capacity to bind themselves to contracts. An exception to this rule exists when the minor misrepresents that he or she was an adult, called the estoppel exception. La Rosa v. Nichols, 92 N.J.L 375, 380 (1918). By putting an incorrect date of birth, the trial court held the plaintiff had “defrauded Sky Zone by representing that he was an adult when he signed the Agreement.”
For the estoppel exception to apply, Sky Zone would have to show, inter alia, that it reasonably relied on the misrepresentation. The Appellate Division found that Sky Zone did not reasonably rely on the information provided by plaintiff. Sky Zone did not claim any employee or representative reviewed the Agreement, and the two different dates of birth went unnoticed upon plaintiff’s entry to the facility. The court held plaintiff was unable to assent to the arbitration agreement and did not have the authority, as a minor, to waive his own rights to go to court. The Appellate Division remanded plaintiff’s complaint alleging severe injuries be reinstated.
