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Current Appeals Cases of Interest


Law of the Case Is Limited: Second Judge Not Required to Defer to Decision of Prior Judge in the Same Case.

By: Sherry L. Foley, Esq.

In Kim Glucker v. Robert Barbalinardo, M.D., DOCKET NO. A-3567-15T2 (App. Div. September 26, 2017), the Appellate Division made clear that a judge deciding whether the good-faith standard of the waiver provision of the Patients First Act is satisfied must focus on the effort the moving party made to locate a statutorily-authorized expert and not the reasons why a particular expert or experts declined to execute an Affidavit of Merit (“AOM”). In making that determination, the court also made clear that the law of the case doctrine does not apply when the initial judge’s ruling is clearly erroneous.

The Patients First Act established the requirement in medical malpractice cases that a plaintiff must have an AOM from an expert that is equivalently-qualified to the defendant. The Act includes a waiver provision from that requirement where “the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” N.J.S.A. 2A:53A-41(c). In Glucker, plaintiffs had initially gotten an expert equivalently-qualified to the defendant. That expert dropped out of the case because of illness. Defendants moved for summary judgment because of the lack of such an expert, and plaintiffs cross-moved for waiver. Plaintiffs’ efforts to find a similarly-credentialed expert were detailed in counsel’s certification to the court. The trial court was more concerned with the reasons why the proposed experts would not provide an AOM than the effort made by plaintiff to find such an expert. After receiving more time to designate an appropriate expert, the plaintiffs stated again that they were unable to do so and requested a waiver. The trial judge denied their motion for a waiver.

Defendants then moved again for summary judgment, and the plaintiffs cross-moved for a waiver. Those motions were heard by a second judge. The second judge found plaintiffs’ efforts sufficient to support a waiver but refused to grant the waiver because the second judge believed that the first judge’s decision constituted law of the case and that he was bound by that decision. Summary judgment was granted, and the appeal followed.

In discussing the law of the case doctrine, the Appellate Division emphasized that the doctrine was discretionary, not mandatory. A second judge is not bound by the first judge’s decision where "there is substantially different evidence" from that available at the time of the prior decision, "new controlling authority, or the prior decision was clearly erroneous." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). The rule is discretionary, and the doctrine is to be "applied flexibly to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985). Finding that the initial judge’s determination was clearly erroneous, the court found the second judge erred in applying the law of the case doctrine. The moral of this story: If at first you do not succeed, try again.


Insurer Bad Faith Complaint Upheld on Appeal.

By: Sherry L. Foley, Esq.

 A recent unpublished appeals court decision in Raymond C. Ellington v. Cure Auto Insurance Co., Superior Court of New Jersey, Appellate Division, Docket No. A-2470-16T4 (July 20, 2017), upheld a trial court decision denying the insurer’s motion to dismiss the bad faith claim filed against it. The appellate court, employing a plenary standard of review, agreed that the Complaint stated a cause of action against CURE for bad faith. Because the interlocutory appeal was from a denied Motion to Dismiss, the factual allegations of the Complaint were taken as true and construed liberally. CURE argued that the trial court had created new law by allowing a bad faith cause of action against an insurer where there was no excess verdict or an improper disclaimer of coverage. The appellate court found, based on New Jersey law, that a bad faith cause of action can be based on a settlement where the insurer has not consented.

The underlying facts as relayed in the Complaint are instructive. Ten months after filing the underlying personal injury action, plaintiff’s counsel sent a letter to CURE detailing the four plaintiffs’ injuries and supplying medical records showing that plaintiffs’ claims far exceeded defendant’s coverage of $25,000.00 per person and $50,000.00 per accident. The letter gave the insurer 30 days to tender the policy, which plaintiffs would accept in full and final settlement of the matter. Otherwise, plaintiffs would prepare for trial and not accept the policy limits at a later date. Eleven months later, CURE tendered the policy limits. Plaintiffs rejected the belated tender and proposed that they would accept the policy limits along with an assignment of the insured’s claims against CURE for breach of its fiduciary obligations to the insured. CURE rejected the counteroffer, stating that no settlement offer including the right to pursue claims against it would be entertained. Four days later, the policy limits were paid into court. Thereafter, plaintiffs’ claims were arbitrated with a finding that plaintiffs were entitled to $1,300,000. At a settlement conference some eighteen months after the initial settlement demand, defendant insured’s counsel stated that CURE had withdrawn its objections. That was too little, too late for plaintiffs. They were unwilling to settle without entering judgment against the defendant insured. Thereafter, a settlement was entered into wherein plaintiffs were to receive prompt payment of the policy limits, an assignment of the insured’s rights against the insurer for breach of fiduciary duty and the entry of a judgment against the insured in the cumulative amount of $1,155,000. According to the Complaint, the judgment was the result of the insurer’s bad faith handling of the matter.

Citing to Fireman’s Fund Ins. Co. v. Security Ins. Co. of Hartford, 72 N.J. 63, 69 (1976), the court found an insurer’s fiduciary duty requires it “to make an honest, intelligent and good faith evaluation of the case for settlement purposes and to weigh the probabilities in a fair manner.” In that case, the Court rejected the insured’s argument (strikingly similar to the argument at bar) that there could be no recovery where there was a settlement, not a judgment, and the insurer did not consent. Citing to the implied covenant of good faith and fair dealing, the court in Fireman’s Fund noted: “That [the insurer’s] breach was not of its expressed covenant to afford its insureds a defense but rather of its implied covenant to exercise good faith in considering an offer to settle for an amount in excess of its policy limits is of no moment.” Id. at 72-73. “[T]he measure of the insured’s damages is either the amount of the judgment entered against the insured in the negligence action or the amount paid by the insured in making a reasonable good faith settlement of the negligence action before trial.” Ibid. The appellate court concluded that the allegations of the complaint and the fiduciary duties of the insurer were sufficient to sustain a Complaint for bad faith, at the pleading stage. “Construing the complaint with liberality, it clearly alleges facts and circumstances demonstrating CURE did not take the initiative and attempt to negotiate a settlement within its policy coverage. To the contrary, the complaint alleges CURE disregarded an opportunity to explore settlement within its policy limits and then waited nearly eleven months – long after it knew the personal injury plaintiffs would no longer accept the policy limits to settle – before following up with them or tendering the policy limits.” Slip Op. at 17. Those allegations were sufficient to state a claim for bad faith. Further, the complaint alleged that the value of the plaintiffs’ claims far exceeded the policy limits, a fact known to the insurer long before it tendered its policy limits.

The court took great pains to underscore the “limited” nature of its holding. “We have concluded we can glean a bad faith cause of action from the complaint; nothing more.” Slip Op. at 18. The arguments advanced by CURE and amicus Insurance Council, according to the court, “blurred the distinction between the standards for determining, on the one hand, whether pleadings state a cause of action upon which relief can be granted, and, on the other hand, whether summary judgment is appropriate.” Slip op. at 18. The claims that the insured failed to comply with policy conditions were outside of the record and not raised before the trial court. They could not be considered by the reviewing court. Similarly, the allegations of collusion, also not raised before the trial court, were not properly before the reviewing court.

The court concluded with a telling aside. It referenced the settlement agreement and how one of its provisions may be read as letting the insured off the hook whether or not the bad faith claim is successful. If that is true, it may have a bearing on the viability of the bad faith cause of action under a “no harm, no foul” rationale. The court suggested that the trial court conduct discovery and allow dispositive motions on that issue before allowing extensive discovery. Plaintiffs may have won a battle but, because of the drafting of the settlement agreement, they could lose the war. Stay tuned!


Deference v. De Novo: Standards Matter.
Trial Court’s Video Review Entitled to Deference on Appeal.

By: Sherry L. Foley, Esq.

The Supreme Court of New Jersey, in State of New Jersey v. S.S., A-84-15 (June 21, 2017), decided that a trial court’s findings of fact based solely on video evidence are entitled to deference and will not be overturned on appeal unless those findings are not supported by sufficient credible evidence. In doing so, the Supreme Court rejected its ruling in State v. Diaz-Bridges, 208 N.J. 544, 566 (2011) which held that when ‘the trial court’s factual findings are based solely on its viewing of a recorded interrogation that is equally available to the appellate court * * * deference to the trial court’s interpretation is not required.” Diaz-Bridges allowed an appeals court to review the trial court’s factual findings de novo. That is no longer the standard.

The underlying case involved the alleged sexual assault of a minor child by her father. At one point in his video-taped interrogation, the defendant-father stated: “That’s all I got to say. That’s it.” On review of this evidence and the video interrogation in its entirety, the trial court found that the defendant had invoked his right to remain silent and, if there was any ambiguity, it was up to the officers conducting the interrogation to make clear whether the defendant was invoking that right. The Appellate Division reversed based on its de novo review of the video in accordance with Diaz-Bridges. Reviewing the same video evidence, the appellate court found that the defendant’s statements did not rise to the level of the invocation of the right to remain silent. The Supreme Court reversed reinstating the deferential standard of review where the trial court’s factual findings are based solely on documentary or video evidence.

The opinion highlights the important differences between the function of the trial judge and of the appellate panel. The trial judge acts as the factfinder. The appellate judge’s role, however, is limited generally to reviewing issues of law. There is nothing to be gained by declaring an appellate judge’s interpretation superior to that of a trial judge’s when there are conflicting reasonable interpretations of the evidence. “When more than one reasonable inference can be drawn from the review of a video recording, say of an interrogation, then the one accepted by a trial court cannot be unreasonable and the alternative inference accepted by an appellate court cannot be superior. In such a scenario, a trial court’s factual conclusions reached by drawing permissible inferences cannot be clearly mistaken, and the mere substitution of an appellate court’s judgment for that of the trial court advances no greater good.” State of New Jersey v. S.S., slip op. at 26.

If your appeal involves the factual findings of the trial court, even if those findings are based solely on documentary or video evidence, unless there is no reasonable basis for those findings, the trial court’s decision should be upheld on appeal under the appropriate standard of review.


CEPA Does Not Apply to Actions Against the Port Authority.

By: Sherry L. Foley, Esq.

On March 15, 2017, the Appellate Division of the Superior Court of New Jersey, in Sullivan v. The Port Authority of New York and New Jersey, et al., A-3506-14T1 (App. Div. March 15, 2017), decided that the New Jersey Conscientious Employee Protection Act (“CEPA”) did not apply to an action against the bi-state Port Authority. The court affirmed a grant of summary judgment to the defendants in the case. First, it should be noted that the plaintiff did not seem to put up much of a fight. He failed to provide any opposing affidavits or evidence, choosing instead to rely solely on the unverified allegations of his Complaint. Rule 4:46-5(a) prohibits an adverse party from relying on the mere allegations of his pleading to oppose summary judgment. Plaintiff chose that same losing strategy on appeal. That ignorance of the Court rules certainly did not help his cause.

Plaintiff tendered his resignation and retired from the Port Authority in 2012 prior to disciplinary proceedings being initiated against him. In August 2012, a notice of claim was served on the Port Authority, alleging violations of the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b). In May 2013, plaintiff filed a complaint against defendants in the Superior Court of New Jersey. He alleged retaliation and civil conspiracy in violation of CEPA. Plaintiff sought injunctive relief in the form of reinstatement and damages. Following the completion of discovery, defendants moved for summary judgment. Defendants successfully argued that the Port Authority is not subject to CEPA because it is a bi-state agency created pursuant to an interstate compact and did not expressly or impliedly consent to suit pursuant to this single-state legislation. Defendants argued that because the NYWL is not complementary or parallel to CEPA, the lack of uniformity between the 2 states’ laws barred enforcement.

On appeal, plaintiff improperly raised arguments in footnotes, which were ignored, and tried to raise arguments for the first time on appeal, which also were ignored. The Appellate Division focused on the history of the New York/New Jersey entity and the compact that created that entity. Until 1951, the Port Authority was immune from suit. When it waived sovereign immunity in 1951, the compact was amended to provide “consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise." N.J.S.A. 32:1-157; N.Y. Unconsol. Laws § 7101. Id. at 9. The two states also enacted a more specific consent to suit provision for tortuous acts by the Port Authority or its agents. N.J.S.A. 32:1-162; N.Y. Unconsol. Laws § 7106. The compact, however, expressly prohibits unilateral action by one state without the concurrence of the legislature of the other state. N.J.S.A. 32:1-8; N.Y. Unconsol. Laws § 6408. That prohibition was the beginning of the end for plaintiff’s CEPA suit.

Finding that the laws of one state cannot be unilaterally enforced against the Port Authority without the other state’s consent, and finding there is no such express consent at bar, the court analyzes whether there is “complementary or parallel state legislation.” Id. at 11. In other words, if New Jersey’s CEPA law is substantially similar to New York’s Whistleblower law, the action can proceed. Unfortunately for plaintiff, that is not what the court found. Although they both have a one year statute of limitations, there are more core dissimilarities. The NYWL requires there be a "substantial threat to public safety." Id. at 13. CEPA does not. CEPA allows punitive damages, but the NYWL does not. CEPA also provides for a trial by jury, which the NYWL does not. Those differences were sufficient for the court to find the statutes were not “complementary or parallel.”

The presentation by plaintiff’s counsel leaves several open questions. If plaintiff had put in evidence showing a triable issue of fact or if plaintiff was allowed to raise arguments he failed to raise below, would the outcome have been different? If plaintiff had chosen to follow through on pursuit of the causes of action under the New York statutes, which were more restrictive, would the court have allowed those claims? If the action had been brought in New York rather than New Jersey, would the court have applied a different standard of review? We may never know; however, a more experienced appellate counsel certainly could have presented plaintiff’s position in a more favorable light. For now, though, on this record, CEPA is unavailable to your client as a cause of action against the Port Authority.


To Stay or Not to Stay: New Jersey Supreme Court Clarifies Standard for Stay of License Suspension in DUI Cases.

By: Sherry L. Foley, Esq.

On March 8, 2017, the New Jersey Supreme Court in State of New Jersey v. Robertson, A-58-14 (March 8, 2017), set forth the standards for staying judgment in DWI cases when the defendant appeals a Municipal Court ruling and when defendant appeals a Law Division ruling. In the trial of a DWI offense in a Municipal Court, the State must prove its case beyond a reasonable doubt. The appeal of such a conviction is to the Law Division, which applies a de novo standard of review, i.e., the Court gives deference to the trial court’s credibility findings but makes its own findings of fact and conclusions of law based on the evidence presented. In that appeal, the burden of proof remains on the State. If the defendant loses at the Law Division, his appeal is to the Appellate Division. On the appeal of such a conviction, the State no longer has the burden of proof. Instead, the standard of review is whether there is sufficient credible evidence in the record to sustain the trial court’s findings. According to the Robertson Court, those differences in posture justify different treatment of requests to stay the judgment. “After the first conviction, the stage is set for a new trial, where the defendant retains the presumption of innocence; after the second, a defendant loses the cloak of innocence and stands convicted -- ready to challenge that determination on appeal. Those basic distinctions call for different standards for stay applications at the two levels of the court system.” Id. at 8-9.

As a result of the Court’s decision, a defendant appealing from the Municipal Court to the Law Division and seeking a stay of license suspension is “presumptively eligible” for a stay. The State, if it chooses to oppose the stay request, then has the burden to overcome that presumption by showing that a stay would cause a serious threat of harm to the public. That showing may include the fact that this is not your first DWI or a history of alcohol abuse.

If the conviction is upheld by the Law Division, Rule 2:9-4 applies to the request for a stay while the matter proceeds to the Appellate Division. A stay may be granted only if the defendant satisfies the following elements: (1) “it appears that the case involves a substantial question that should be determined” on appeal, (2) the safety of any person or the community “will not be seriously threatened” if defendant’s license is not suspended, and (3) “there is no significant risk of defendant’s flight.” Robertson, supra, slip op. at 14. The third element will likely not be an issue. The second element can be satisfied by imposing the least restrictive limitations, i.e., allowing a defendant to drive to and from work. The first element poses the most significant hurdle. To be substantial, the question must be a close question and one that would likely lead to reversal. Questions of fact alone generally would not satisfy that element.


The Fourth Circuit Holds That Assault Weapons Are Not Protected by the Second Amendment.

By:  Sherry L. Foley, Esq.

The United States Court of Appeals for the Fourth Circuit made history last month by deciding that the Maryland Firearms Safety Act ('FSA"), which bans citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million Americans for lawful purposes, did not infringe on the Second Amendment right to keep firearms for self-defense purposes. Equally constitutional, found the Court, was the FSA's ban on large-capacity detachable magazines ("LCMs"). Interestingly, from a procedural standpoint, a three-judge panel of the Fourth Circuit had remanded the case after the District Court's grant of summary judgment to the State finding the law constitutional, requiring the District Court to revisit its decision using a strict scrutiny standard instead of the intermediate scrutiny standard it applied. On rehearing, the Fourth Circuit en banc held that no remand was necessary and upheld the District Court's decision.

The test to determine the constitutionality of a law under a Second Amendment challenge, according to the court, consists of two questions. First, does the Second Amendment apply? Second, if so, what level of scrutiny should be applied to the purpose of the law? Applying that two-prong analysis to the law, the court in Kolbe, et al. v. Hogan, et al., No. 14-1945 (4th Cir. Feb. 21, 2017), found that it did not need to apply the second prong because the first prong of the test was not satisfied. Based on dicta in the Supreme Court case of District of Columbia v. Heller, 554 U.S. 570 (2008), penned by Justice Antonin Scalia, the Kolbe court found that the banned assault weapons and LCMs were NOT constitutionally protected under the Second Amendment because those weapons are "like" "M-16 rifles"-"weapons that are most useful in military service"-which the Heller court noted were not within the purview of the Second Amendment. See 554 U.S. at 627 (the Second Amendment does not safeguard "M-16s and the like.").

The court, nonetheless, went on to analyze the second prong anyway. The court concluded that even if the Second Amendment did apply, the correct standard is intermediate scrutiny as applied by the District Court not strict scrutiny as espoused by the three-judge panel of the Fourth Circuit. Under that standard, the law is reasonable because it does not leave people without the ability to protect their homes and person.

The court decided the case against the backdrop of the Newtown, Tucson, Aurora and Orlando mass shootings and cited to those massacres and the lessons learned from those tragedies. In self-defense scenarios, it is rare to fire more than ten rounds. In Newtown, where the shooter paused to change out a thirty-round magazine, children were able to run away. In Tucson, the shooter was tackled while reloading his firearm. In contrast, the Aurora shooter emptied his 100-round magazine without a break in firing. There is no reason for someone who simply wants to defend his home and hearth to have a semi-automatic weapon with more than ten rounds of ammunition. The statistics show that a very low percentage of gun owners own these weapons and a very high percentage of these weapons are used in mass shootings. As the Heller court found, the Second Amendment right is not unlimited, and citizens are not entitled to keep and to carry any weapon whatsoever for whatever purpose. Kudos to the Fourth Circuit for a smart decision in Kolbe v. Hogan.


Case Reversed and Remanded After No Cause Because Judge Failed to Ask Open-Ended Questions on Voir Dire.

By:  Sherry L. Foley, Esq.

In Heredia v Picininni, Superior Court of New Jersey, Appellate Division, Docket No. A-5714-14T1 (February 15, 2017), the court held that a Judge’s failure to ask open-ended questions as mandated by Directive #4-07 constituted an abuse of discretion resulting in the reversal of a defense verdict and a remand to the trial court. The case is unpublished and, therefore, lacks precedential value but is instructive regarding a Judge’s obligation to follow Directive #4-07 and the consequences for failure to do so.

The Directive in question provides in pertinent part that:

 In addition to the printed questions, the judge shall also inform the jurors in the box and the array that jurors will also be individually asked several questions that they will be required to answer in narrative form.

The judge will then ask [the] juror each of the open-ended questions, to which a verbal response shall be given and for which appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror's reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc.

. . . .

The judge must ask at least three such questions, in addition to the biographical question and the two omnibus qualifying questions. This is a minimum number and judges are encouraged to ask more where such action would be appropriate.

The Directive is binding on all trial courts. See Gonzalez v. Silver, 407 N.J. Super. 576, 598 (App. Div. 2009).

Plaintiff, at trial, had asked the Judge to ask five open-ended questions that Plaintiff had crafted. The Judge refused to ask them. Instead, the Judge stated that he would be asking many open-ended questions in the form of biographical inquiries as required by the Directive. A jury was empanelled, without objection, and returned a verdict of no cause of action on non-economic losses but awarded plaintiff economic damages representing plaintiff’s outstanding medical bills. The appellate court found the judge’s biographical questions to be in accordance with the Directive but they were not a substitute for the open-ended questions mandated by the Directive. The purpose of the open-ended questions is to reveal juror bias. While the Judge had the discretion to not ask Plaintiff’s questions, he was still obligated to ask at least three open-ended questions. The failure to do so constituted error but was it harmless error? In this case, the Court said no. Based on its review of the record, without stating any specifics, it found the failure to ask the open-ended questions to be of “such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. If your judge fails to ask open-ended questions in voir dire, you have grounds for an appeal.


Trial Lawyers Beware:  Appellate Division Sua Sponte Sanctions Plaintiff’s Appellate Attorney for Shoddy Brief.

By:  Sherry L. Foley, Esq.

The Appellate Division in Sackman v New Jersey Manufacturers Ins Co., on April 26, 2016, sanctioned the plaintiff’s appellate attorney pursuant to Rule 2:9-9.  That rule is designed to deter the improper prosecution and defense of an appeal.  Its purpose is to prevent the misuse of judicial resources that result from such improprieties.  Not to be confused with Rule 1:4-8 or the Frivolous Action Statute,  Rule 2:9-9 is meant to deal with violations of appellate procedural rules rather than spurious appeals.

The court in Sackman felt compelled to censure and sanction appellate counsel personally because the brief he submitted “displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State.” Sackman, supra, slip op. at 27.   The brief lacked “any effort by counsel to cite and discuss, in a professionally reasonable manner, relevant legal authority” as it pertained to points raised in his brief.  Ibid.

Among counsel’s transgressions, he failed to cite the relevant standard of review; he failed to analyze case law as it applied to the facts at bar.  He failed to provide any case law in support of some of his positions and instead filled pages with nothing more than his unsupported assertions.  Labelling the brief “shoddy” and “unprofessional”, the court cited to State v. Hild, 148 N.J. Super. 294 (App.Div. 1977) wherein the court had addressed and condemned similar “shoddy” workmanship. “The absence of any reference to the law, as here, suggests as well a regrettable indifference on the part of the brief writer not only to the rules but to the interest of the client as well.”  Id. at 296.

Reaffirming its commitment to the professional standards expressed in Hild, the court set forth three rules that every attorney practicing before the court must adhere to.  First, be familiar with the record below.  Second, research and analyze pertinent legal authority as it applies to the pertinent facts on appeal.  Third, briefs must reflect that the first two rules were performed in a “diligent and professional manner.”  Sackman at 30.

The court emphasized that this type of professional behavior is not only to be expected from the courts but from your clients as well.  The monetary sanction imposed was not substantial--the attorney’s firm was to issue a check payable to the Treasurer of the State of New Jersey in the amount of $200.00—but the client lost and, based on the opinion, may have an ethical complaint against the attorney.  The moral of this case is hire experienced appeal counsel to handle your appeals.  From this point forward, briefs submitted to the appellate courts of New Jersey will be strictly scrutinized for compliance with the Sackman standards.