Category Archives: Trial Practice

To Call (Two) or Not To Call (Any) Experts: That Is No Longer a Question

The New Jersey Appellate Division recently handed down two decisions that give trial lawyers greater freedom to try their cases when it comes to the selection and presentation of expert testimony. In McLean v. Liberty Health System, A-1793-11, a medical malpractice case, the plaintiff retained two emergency room medical experts to opine that the plaintiff’s ER treatment deviated from the standard of care. The trial court granted the defense counsel’s unwritten and off-the-record request that each side be limited to one expert per specialty.…

Continue Reading....

Doctrine of Res Ipsa Loquitur Continues to Expand in New Jersey

To invoke the doctrine of res ipsa loquitur, a plaintiff must establish: (1) the incident at issue “ordinarily bespeaks negligence”; (2) the instrumentality causing the injury was within the defendant’s exclusive control; and (3) there is no evidence that the injury was the result of plaintiff’s voluntary act or neglect.  In Mayer v. Once Upon a Rose, Inc., the Appellate Division has continued New Jersey’s expansion of plaintiff’s opportunities to reach a jury by invoking the doctrine. Plaintiff, a caterer, claimed he sustained…

Continue Reading....

No Ongoing Duty to Advise Opponent of Intentions Regarding Expert Testimony at Trial

Tactical decisions involving whether to present expert testimony are often made up to the eve of, and sometimes even during, trial.  In a recent unpublished decision that should be comforting to trial attoneys across New Jersey in all manner of cases, our Appellate Division ruled this week that defense counsel “did not violate any duty of candor to the tribunal and his adversary by not disclosing his trial tactics on an ongoing basis.” A copy of the panel’s decision in Fields v. Hackensack University Medical

Continue Reading....

Necessarily Unhelpful: If Expert Opinion Is ‘Unnecessary’ for the Plaintiff to Prove a Warning Case, Can the Defendant Seek to Exclude It as ‘Unhelpful?’

A recent trial court opinion granting a defendant’s motion to strike an expert’s “net opinion” on the sufficiency of a warning, but then denying summary judgment on the grounds that expert testimony is not necessary in an otherwise straightforward failure-to-warn case, raises an interesting question: If expert testimony is not necessary to prove a failure-to-warn claim in the first instance, then shouldn’t defendants be moving to strike the expert testimony more often on the grounds that such testimony is “unhelpful” to the jury? Vazquez v.

Continue Reading....

Can In-House Counsel Be Compelled To Testify At Trial?

Yes.  As fellow blogger Chip Miller and I wrote in a recent article titled Keeping In-House Counsel Off the Stand (And Outside Counsel Out of the Doghouse), published in DRI’s In-House Defense Quarterly (Summer 2012), “In-house counsel attending trial can indeed find themselves called to the witness stand, and that scenario has played out in at least several product liability trials. Once on the stand, plaintiffs’ tactics include using the witness as a human bulletin board to authenticate and then display and discuss the…

Continue Reading....

Personal Injury Settlements & Medicare Set-Asides: Unresolved Issues

For those working in the field of personal injury, no matter as an attorney, insurance carrier, self-insurer, or litigant, the fear of the unknown regarding when Medicare set-asides are applicable strikes great fear in all of us.  Unfortunately, there has been no legal precedent to help guide us through this process until the recent unpublished decision of Judge Dickinson R. Debevoise of the United States District Court District of New Jersey in the matter of Sipler v. Trans AM Trucking, Inc., et al., Civ. No.…

Continue Reading....

Wrongful Death and Taxes

In a matter of first impression, the New Jersey Appellate Division has ruled that the estate tax impact of a premature death can be included as an element of damages in a wrongful death claim.  The case, Beim v. Hulfish, involved the 2008 death of 97-year old John Kellogg as the result of injuries received in a automobile accident.  Kellogg’s estate paid over $1 million in estate taxes but, had he survived until 2010, that tax liability would have been reduced to zero.  Kellogg’s…

Continue Reading....

SSA’s Determination of Disability Is Not Worth Its Weight In Prejudice

In a medical malpractice case arising out of allegedly negligent knee replacement surgery, the plaintiff offered into evidence the Social Security Administration’s (SSA) Determination of Disability. Orber v. Jain, 10-cv-1674 (DNJ Camden).  Judge Renee Marie Bumb, United States District Court for the District of New Jersey, found the determination to be inadmissible under Rule 403 because it is “substantially more prejudicial than probative.” The court cited a number of reasons for its decision, which should be of interest to similarly situated defendants.  First, the…

Continue Reading....

Jurors’ Use Of Social Media At Trial

Hardly a day passes without a report of the impact of social media on the law.  From divorce cases, which lead the charge in the use of Facebook information in court, to criminal law enforcement , workers compensation, and personal injury matters , there is no doubt that the use of evidence obtained from social media is widespread and gaining in general acceptance.   The power of social media to influence a case extends beyond its evidentiary value and the federal judiciary is…

Continue Reading....