September 2006, No.5

September 2006, Vol. IV, No. 5

Is a Decedent's Character a Relevant Issue in a Wrongful Death Case? Not so easy - the answer is it depends. In Johnson v. Dobrosky, 187 N.J. 594 (2006), the decedent died from alleged medical malpractice, and her family sought damages for lost advice, guidance, and counsel, but not for financial losses. In such a case, the Supreme Court stated that the decedent's welfare fraud conviction was not relevant to any issue in the case, and was being used solely to present the decedent as a person of bad character. The Supremes relied on N.J.R.E. 404c in explaining that character is only in issue if it is an element of a claim or defense. Justice Rivera-Soto dissented stating that character should be considered in evaluating the advice that a mother provides to her children. Three cheers for the Supreme Court for preventing irrelevant issues from distracting juries in wrongful death cases. This decision should also limit in limine motions.

Can a Biomechanical Engineer Opine That a Low Impact Collision Cannot Cause Injuries? Not unless the engineer's opinion is sufficiently reliable. See Hisenaj v. Kuehner, 2006 N.J. Super. Lexis 288 (App. Div. 2006). Following in the footsteps of Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002), which precluded such testimony as unreliable because it was based on studies where the conditions were unlike the accident in that case, the Appellate Division ruled that the engineer's testimony was unreliable because the seventeen studies on which he relied did not reasonably and reliably support his opinion. In addition, the record failed to show that experts in the field rely on the engineer's methodology and that the data base included sufficient subjects similar to the plaintiff. The Appellate Division's ruling in Hisenaj is consistent with Suanez, and properly excludes unreliable expert testimony from the evidence base. When these cases are considered with the recently decided Brenman v. Demello, 383 N.J. Super. 521 (App. Div. 2006), the Appellate Division has severely limited the use of the "tap defense."

Is a Psychiatrist Immune from Liability for Abandoning a Patient? Again, not so easy. For those of you who said yes because of N.J.S.A. 2A:62A-16, which immunizes a mental health practitioner from civil liability unless there is a duty to warn of a patient's violent acts, you would be wrong. See Marshall v. Klebanov, 188 N.J. 23 (2006). In Marshall, the Supremes held that the statute does not apply to abandoning a patient who has serious depression if the psychiatrist fails to treat the patient in accordance with accepted standards of care. The Supreme Court then explained that the statute does not eliminate medical malpractice claims based on deviations from the standard of care. Justice Rivera-Soto again provided a lone dissent based on the statute. This decision is based on common sense, statutory interpretation, and the long history of the elements of a medical malpractice claim.

**RULE CHANGES**:

A. Motions to Extend Discovery (1:6-2, 4:24-1): All motions to extend the discovery end date MUST attach a copy of all prior orders extending the discovery period or a certification stating that there have been no extensions.

B. Time to Apply for Default Judgment (4:43-2d): Has been reduced from six months to four months.

C. Return Date for Motions for Summary Judgment (4:46-1): Must be returnable no later than thirty days before the scheduled trial date, unless the court orders otherwise for good cause.

D. Discovery in Special Civil Part ((6:4-3, 6:4-4): Production of documents and requests for admission are now governed by 4:18 and 4:19. Defendants are also entitled to obtain a medical examination, but the time period is thirty days, not forty-five as in the Superior Court.

E. Payments to Court: All checks must now be made out to Treasurer, State of New Jersey.

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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