March 2006, No. 2

March 2006, Vol. IV, No. 2

Can an expert base his opinions on a differential diagnosis? Yes. In Creanga v. Jardal, 185 N.J. 345 (2005), the Supreme Court reversed the Appellate and Law Divisions' decisions to preclude a plaintiff's physician's testimony that was based on a differential diagnosis. In Creanga, after being involved in a rear-end collision, the plaintiff went into premature labor and lost both twins during the delivery. Her treating doctor determined that the most likely cause of the premature labor was the accident because he ruled out the other possible causes. The Supremes ruled that differential diagnosis is common in the medical community, is accepted in federal and state courts, and is compatible with New Jersey's evidence rules. The Supremes also advised that in order for a differential diagnosis to be admissible, the expert must discuss what he or she did to eliminate other possible causes. Although we applaud the Supremes for getting this issue right, we are puzzled that both the Appellate and Law Divisions excluded the testimony given how often doctors use differential diagnosis.

Proposed Rule Change – summary judgment deadline. The Supreme Court Committee on Civil Practice has made proposed Rule amendments. The Supreme Court will be acting on the proposals in June, and any and all comments must be submitted by April 24, 2006. Candidly, the proposals are nothing too exciting, but one is worth discussing. The Committee suggests that the return date for motions for summary judgment be no later than 30 days before the trial date and that the trial date notice be mailed ten weeks before the trial date. Is this really necessary? This proposal adds another rule with another time constraint without any real reason. The Committee asserts that having the return date 30 days in advance of the trial date will not affect the certainty of the trial date. The fact is that most first listings are adjourned by one side or the Court. More importantly, what happens if a lawyer is on trial and cannot complete the motion before this new deadline? Do you have to file a motion to extend the deadlines? What is the standard – good cause or exceptional circumstances? This proposal should be rejected because we need fewer deadlines and because our trial courts should be given more discretion in these situations.

Proposed Rule Change – discovery track assignments. The Conference of Civil Presiding Judges has proposed changing the track assignments for several cases. First, contract/commercial cases would be moved from Track 1 to Track 2, which would double the discovery period from 150 to 300 days. Second, assault and battery cases would be moved from Track 2 to Track 3, thereby having a discovery period of 450 days. Third, complex cases involving construction projects would be moved to Track 4 and would be managed by a particular judge. The Conference of Civil Presiding Judges should be applauded for recognizing the need for longer discovery periods in these cases. Moreover, the Conference's proposal will eliminate unnecessary motions to extend discovery in these cases. Most importantly, the additional time will provide attorneys with sufficient time to obtain discovery and prepare their cases. Great proposal, and we thank the Conference for them.

Are photographs showing minimal damage to a motor vehicle admissible to prove that the low impact collision did not cause the plaintiff's injuries? For those of you who are sitting back and saying this one is easy, think again because the answer is no. If a defendant plans to argue that minimal damage did not cause the plaintiff's injuries with the use of photographs, expert testimony is required. See Brenman v. Demello, N.J. Super. (App. Div. 2006). In Brenman, the Appellate Division reversed the trial court's decision to admit the photographs of the plaintiff's car without a limiting instruction and ordered a new trial. The Appellate Division recognized that photographs of cars may be admissible to demonstrate the severity of the impact or damage to the car when they are in dispute, but in such circumstances, trial courts should provide limiting instructions. The Appellate Division hit a grand slam with this decision because an argument that minimal damage did not cause a plaintiff's injuries is conjecture without expert testimony and permits a lawyer to argue to the jury without support. Moreover, these types of arguments are inflammatory and unduly prejudicial without expert testimony. Bottom line: if a defendant plans to use the "tap" or "fender bender" defense, hire an expert.

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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