February 2007, No. 1

February 2007, Vol. V, No. 1

A Belated Happy New Year and Happy Valentine's Day.

Is an Expert Required in a Legal Malpractice Case Where the Plaintiff's Expert Fails to Appear in Court?; If you said yes, you would be wrong!; The Appellate Division recently said an expert is not required in such a case because a jury is capable of understanding the consequences of an expert's nonappearance at trial.; See; Kranz v. Tiger, 2007 N.J. Super. LEXIS 26 (App. Div 2007).; In Kranz, the original personal injury case settled for $500,000 when it was worth more than $1 million because Dr. Arthur Tiger failed to appear at the trial.; The second case involved malpractice claims against the expert for not appearing at the trial and against the lawyers for failing to procure the doctor's attendance in person or via videotape.; This ruling makes good sense because the failure of an expert to appear falls within the ambit of "common knowledge," which eliminates the need for an expert in the subsequent malpractice case.

Kranz Part II: Is the Amount of the Settlement in the First Case Admissible in the Second Case?; For those of you who said yes under the theory of "lost settlement value," i.e., the plaintiff must prove that the lawyer's malpractice reduced the settlement value of the case, you would be wrong.; In Kranz, the plaintiff was pursuing "the case within the case," i.e., plaintiff must prove that she would have won the first case but for the malpractice, and the Appellate Division found that the $500,000 settlement was too prejudicial to plaintiff's claim for damages.; We disagree with this ruling because the settlement in the first case provides context to the jury and would be helpful in assessing the damages in the legal malpractice case.

Does a Plaintiff in a Verbal Threshold Case Have to Provide a Comparative-Medical Analysis Between Two Accidents When She Does Not Claim Aggravation of a Pre-existing Accident?; For those of you who said yes under Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), you are wrong.; In Davidson v. Slater, 2007 N.J. LEXIS 23 (2007), the Supremes held that if a plaintiff does not allege an aggravation of a pre-existing injury, she does not have to apportion her injuries between the two accidents.; If, on the other hand, the defendant argues that a pre-existing injury exists, then the defendant bears that burden and the ultimate issue is for the jury.; The Supremes explained that this case hinges more on traditional principles of causation and burden of persuasion than on the verbal threshold.; The Supremes nailed this case because they appropriately analyzed the burden of persuasion and eliminated any confusion on this issue.

What's the Impact of Brun? For those of you who are asking what is Brun, you have come to the right place.; In Brun v. Cardoso, 2006 N.J. Super. LEXIS 299 (App. Div. 2007), the plaintiff, who selected the verbal threshold in her car insurance policy, was injured in a motor vehicle accident.; Her chiropractor sent her to have an MRI, and he subsequently wrote a report stating that plaintiff had permanent injuries, including among other things, a herniated disc and a bulging disc in her lower back.; The Appellate Division stated that the chiropractor could not testify about the findings on the MRI because they are complex records, and thus, do not fall under the exception to hearsay for business records.; See N.J.R.E. 803c6.; We disagree with the Appellate Division's opinion because treating physicians (who later become experts) customarily rely on MRI reports written by radiologists to render treatment plans. PRACTICE TIP: To avoid any problems with the readings of MRIs, make sure that your experts review the films and include their readings in their reports.; So long as your treating physician and/or expert physician have experience and training in reading MRI films, a judge cannot preclude the expert from rendering opinions on injuries, causation, and permanency based on those films.; For example, orthopaedists have experience reading MRI films, but you have to make sure that they read the films before they write their reports.

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.

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