April 2007, No. 3

April 2007, Vol. V, No. 3

Can an Attorney Ask Her Expert Questions Regarding Qualifications If Opposing Counsel Stipulates to the Qualifications? For those of you said no, you would be wrong because a party need not agree to a stipulation regarding her expert's qualifications. See Espinal v. Arias, 391 N.J. Super. 49 (App. Div. 2007). In Espinal, the trial court qualified defendant's expert after plaintiff's counsel stipulated to the expert's qualifications despite defense counsel's objection. The trial court based its decision in part on time considerations. The Appellate Division found that a party is entitled to a fair opportunity to present its evidence, and that the jury is entitled to hear the differences in qualifications between two experts because those differences may assist the jury in deciding which expert is more credible.

Is a Scar Always a Scar? For those of you wondering whether the author has lost his mind, wonder no more! The question is how much of a scar does one need to vault the verbal threshold standard of "significant scarring." N.J.S.A. 39:6A-8a. Well, in Soto v. Scaringelli, 189 N.J. 558 (2007), Justice Rivera-Soto answered the question for the Supremes: to vault the verbal threshold, a plaintiff must demonstrate with objective evidence that the scar substantially impaired or injured the beauty, symmetry or appearance thereby rendering the plaintiff unsightly, misshapen, or imperfect" and deformed her in some manner. Factors to be considered are "appearance, coloration, existence and size of the scar, as well as shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters." In opposing motions for summary judgment in this context, a plaintiff should produce photographs of the scarring. Ultimately, the Supremes concluded that the plaintiff's scar from shoulder surgery did not meet the threshold because it was not discernible (as stated by the trial court). So, from our perspective, this opinion can be summarized by Justice Potter Stewart's famous statement about obscenity: "I know it when I see it." From the strange but true file, the plaintiff, Soto, has the same name as Justice Rivera-Soto, and the defendant's name was Scaringelli. Please forward jokes regarding this name game, and the best one will appear in next month's update.

Does the Fireman's Rule Still Prohibit First Responders From Suing Property Owners? Not any more. See Ruiz v. Mero, 189 N.J. 525 (2007). In Ruiz, the Supremes stated that N.J.S.A. 2A:62A-21's and N.J.S.A. 2A:62A-22's passage in 1991 eliminated the fireman's rule, and thus, first responders to scenes may sue property owners for damages sustained because of the property owners' negligence. In Ruiz, patrons of a bar injured a police officer who was sent to the bar to break up an argument about a soccer game on television. Yes, soccer fans can get a little crazy about their favorite teams. The Supremes nailed this one in the back of the net as the statute is clear. GOAL!

Can a School Teacher Sue Her Board of Education For Injuries Sustained When Students Are Fighting? Short answer, no. In Kibler v. Roxbury Board of Education, 2007 N.J. Super. LEXIS 105 (App. Div. 2007), the plaintiff claimed that one of the students had a disciplinary problem, and that the school failed to enforce its progressive disciplinary policy. The Appellate Division did not find that argument persuasive because the teacher could not meet the intentional wrong exception to the workers' compensation statute. See N.J.S.A. 34:15-8; Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002). The Appellate Division concluded that student fights are not unexpected, and therefore, a teacher cannot bypass the exclusive remedy of workers' compensation. Good ruling by the Appellate Division and a good review of the intentional wrong exception for those of you looking for a refresher course (Fletch anyone?).

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail mjepstein@epsteinbeirne.com.

Watch Our Videos To Learn How We Can Help