HKMP E-Letter

July 2019
In the case of G.A.-H. v. K.G.G ., the New Jersey Supreme Court was receptive to arguments advanced by HKMP attorneys George Hardin and Arthur Povelones and reinstated a trial court’s grant of summary judgment to an employer represented by the firm. The summary judgment had been reversed by the Appellate Division in a published opinion that theorized an employer might conceivably be held liable for a co-worker’s failure to report another worker’s sexual encounter with a minor in his private affairs, unrelated to the employer’s work. 455 N.J. Super. 294 (App Div. 2018). The Supreme Court reversed and concluded there was no basis for a duty to be imposed on an employer or a co-worker under the circumstances of this case. No. A-25/26-18 (June 26, 2019).

Defendant K.G.G. had engaged in an illegal sexual relationship with the plaintiff when she was fifteen years old. K.G.G. was a friend of plaintiff’s family. He was employed as an emergency medical technician and sometimes parked an ambulance near plaintiff’s bus stop to meet her and walk her to the bus stop. In one instance, other employees were in the ambulance when this occurred, although they did not interact with plaintiff, and the bus stop could not be seen from the vehicle. All of the improper sexual activity took place on K.G.G.’s personal time in isolated areas and in his personal vehicle. 

While at work, K.G.G. bragged to co-workers, including the co-defendant A.M., that he was in a “relationship” with a young woman, but did not identify the plaintiff’s name or age. K.G.G. also showed A.M. naked pictures and salacious videos of plaintiff on his personal phone. The essence of plaintiff’s claim was that A.M. should have drawn the conclusion that K.G.G. was having a sexual encounter with a minor and reported K.G.G. and this activity to the employer. Plaintiff alleged that the employer was vicariously liable for A.M.’s failure to report, and further that the employer had negligently retained, trained, and supervised A.M. and K.G.G.

The New Jersey Supreme Court found that A.M. had no regulatory duty as an emergency medical technician to report any of the activities involved as “child abuse”, because K.G.G. did not have custody or control of the plaintiff.  The court further found that the alleged facts were insufficient to establish that A.M. had any special reason to know that K.G.G. was engaged in sexual activities with a minor. Because A.M. had no liability in tort, the employer had no potential vicarious liability based on A.M.’s alleged acts or omissions. The court further held that K.G.G.’s bragging to co-workers about his younger “girlfriend” and his meeting plaintiff to walk her to the non-visible bus stop did not make the employer negligent in retaining, training, or supervising K.G.G. or A.M.

The significance of this ruling is that an employer or co-worker should not be held liable for failing to draw inferences of ongoing criminal conduct from another worker’s comments and conduct relative to their personal affairs, where there is no “special reason to know” and no “special relationship” with that worker or the victim. The Supreme Court did exercise judicial restraint in limiting its decision to the circumstances of this case, leaving open the issue where such special knowledge or relationship may exist. Questions regarding the significance and scope of this holding may be addressed to George Hardin or Arthur Povelones.

In the case of Taveras v. Perla, Superior Court of New Jersey , Middlesex County, MID-L-7475-16, HKMP recently succeeded in obtaining a defense verdict for their client after a jury trial. HKMP Associate Joseph A. DiPisa presented the case before the Honorable Thomas J. Buck, J.S.C., and a full jury.
Liability was stipulated in this rear end collision case. Plaintiff, who was 17 at the time of her accident, alleged neck and back bulges resulting in over two years of medical treatment. This treatment included three medial branch blocks and a r hizotomy (nerve ablation procedure), all of which were performed under general anesthesia. 
In addition to relying on testimony from a medical expert, HKMP Associate Joseph A. DiPisa also subpoenaed two of plaintiff’s radiologists who were charged with interpreting plaintiff’s MRI films during the course of her treatment. Both radiologists testified that Plaintiff’s neck and back pathologies were not causing nerve impingement.

Following a one week long trial, the jury decided that plaintiff had not sustained a permanent injury and returned a verdict in favor of HKMP’s client.
Senior Associate James L. Fant with the assistance of Loreal Lingad as second chair achieved a defense verdict on behalf of a registered triage nurse in a malpractice case. The plaintiff alleged that the emergency department triage nurse deviated from accepted standards of care by improperly evaluating his medical condition and placing him in the waiting area. Plaintiff presented with flu-like symptoms and argued at trial that he should have been assigned a higher acuity level and taken immediately into the emergency department. The plaintiff alleged that he lost consciousness a while seated in the emergency department waiting area and sustained a cervical injury necessitating a cervical fusion surgery. Plaintiff’s former spouse also sought damages for loss of consortium and services. 

Plaintiff testified that during the brief episode of unconsciousness his head “snapped back,” resulting in a cervical herniated disc and spinal cord compression that required emergency surgical intervention. Plaintiff presented testimony from his treating spinal surgeon that the herniated disc was acute in nature and caused by the movement of the plaintiff’s neck in the waiting area. Plaintiff averred that had he been properly evaluated he would have been placed in a bed and the injury would not have occurred. In addition, plaintiff alleged that he was placed in an unmonitored section of the emergency department waiting area and that the triage nurse failed to adequately monitor him.  

The defense presented expert testimony that the plaintiff, although infirm, was stable and did not warrant immediate medical attention. The defense also offered testimony from a biomechanical engineer that there was an insufficient mechanism of injury and that the motion described by plaintiff would not generate enough force to cause a traumatic herniation. Additional expert testimony from an orthopedic surgeon suggested that the herniated disc was the result of long-standing degenerative changes as opposed to a traumatic event. 

Following a two-week trial in Sussex County Superior Court, the jury returned a defense verdict and found that the triage nurse did not deviate from accepted standards of care. 

Plaintiff had also brought malpractice actions against a number of physicians as well as a direct action against the hospital. We successfully moved for summary judgment and obtained a dismissal of the direct claims against the hospital.   Prior to trial, plaintiff entered into voluntary dismissals as to the physician defendants. 

HKMP Associate Eric J. Koplowitz recently obtained a directed verdict for the firm’s clients in a lead poisoning case venued in Nassau County. It was alleged the infant plaintiff was exposed to unsafe levels of lead in his own apartment, as well as his babysitter’s apartment, in the clients’ building. The infant plaintiff alleged the lead poisoning caused speech delays and other developmental delays. During cross examination of plaintiff’s liability expert, Mr. Koplowitz elicited testimony that the client’s building was most likely not the source of the infant plaintiff’s elevated lead levels. After the close of plaintiff’s case on liability, the judge granted HKMP’s motion for a directed verdict.

Insurers frequently retain investigators upon being notified of an accident to obtain witness statements, take photographs, and gather other materials in anticipation of a potential lawsuit against the policyholder. The New Jersey Appellate Division recently issued a decision that addresses the circumstances under which the investigation materials may be subject to disclosure in the subsequent litigation.  Paladino v. Auletto Enterprises, Inc., No. A-0232-18T1 (App. Div. June 6, 2019).

The case involved a slip and fall by a guest at a wedding reception at the defendant's catering facility. The trial court compelled the defendant to produce photographs of the accident location and recorded statements of several employees of the defendant taken and obtained in the weeks following the accident by an investigator retained by the defendant's insurer.
In T.L. v. Jack Goldberg, M.D. (A-11-18) (081135) (2019), the New Jersey Supreme Court recently held that a plaintiff in a medical malpractice action was not entitled to a new trial when plaintiff’s counsel did not object to the defendant doctor’s trial testimony which was inconsistent with his deposition testimony. The Court’s decision reversed the majority of a split Appellate Division panel which had held that plaintiff was entitled to a new trial under McKenney v. Jersey City Medical Center, 167 N.J. 359 (2001).

The defendant doctor had denied at deposition being aware of any studies in a journal pertaining to the particular medication used to treat patients with plaintiff’s condition. On plaintiff’s motion, the court had barred the defendant from using any undisclosed medical literature at trial. The defendant doctor then testified at trial that he relied upon a clinical trial in the same journal that he had denied reviewing at deposition.

The Supreme Court distinguished McKenney by finding the doctor’s trial testimony was “arguably favorable” to

plaintiff’s case in that the defendant purportedly had knowledge of the medication’s risks but still prescribed it
to plaintiff. In turn, the Court found the failure to object to the doctor’s change in testimony was likely strategic. The Court also distinguished McKenney, in which opposing counsel objected to medical professionals’ change in testimony, moved for a mistrial, and sought to bring a previously dismissed defendant back into the case because the witness (previously granted summary judgment) testified at trial inculpating herself and partially relieving the defendant doctor of liability.

Last, the Court found that plaintiff’s counsel’s failure to object to the doctor’s change in testimony breaching the motion barring reliance on undisclosed medical literature did not warrant a new trial under the plain error standard as the lack of objection at trial suggested that plaintiff’s counsel had “not perceived [the change in testimony] to be as fatal as is now argued.”

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