April 2005, No. 1

April 2005, Vol. III, No. 1

Is a court supposed to dismiss a plaintiff's complaint if it files a late physician certificate? No. In Casinelli v. Manglapus, 181 N.J. 354 (2004), the Supreme Court held that the physician certificate under AICRA is not a pleading or a part of the cause of action, but more akin to discovery. Thus, the Supreme Court found that dismissing ( with or without prejudice) a complaint when a plaintiff belatedly serves the certification is draconian, and that courts should resort to the "arsenal of remedies" available to it to enforce discovery violations. The Supreme Court also stated that trial courts must assess all of the facts to determine the appropriate remedy, and that where warranted, trial courts could dismiss a complaint with prejudice. We must applaud the Supreme Court for its Solomonesque opinion because it eliminates unnecessary dismissals, and permits the trial courts to use their discretion in determining the appropriate remedy, if any, for the late filing of a physician certificate.

Can a plaintiff recover co-payments and deductibles under PIP against a tortfeasor? Although these claims are not large, the issue is important. Why? Because if the claim is valid, it is based on an economic recovery, and is therefore outside the grips of the ever-tightening verbal threshold. Alas, the Appellate Division recently held that AICRA did not overrule Roig v. Kelsey, 135 N.J. 500 (1994), which stated that such claims are not permitted. D'Aloia v. Georges, 372 N.J. Super. 246 (App. Div. 2004).

ETHICS UPDATE: Supreme Court Gets Tough. If an attorney has a history of ethical problems and fails to clean up his or her act, the Supreme Court will disbar the attorney because permits the trial courts to use their discretion in determining the appropriate remedy, if any, for the late filing of a physician certificate.

Can a plaintiff recover co-payments and deductibles under PIP against a tortfeasor? Although these claims are not large, the issue is important. Why? Because if the claim is valid, it is based on an economic recovery, and is therefore outside the grips of the ever-tightening verbal threshold. Alas, the Appellate Division recently held that AICRA did not overrule Roig v. Kelsey, 135 N.J. 500 (1994), which stated that such claims are not permitted. D'Aloia v. Georges, 372 N.J. Super. 246 (App. Div. 2004). the attorney cannot demonstrate that a lesser punishment will improve his or her conduct. See In re Zeitler, 182 N.J. 389 (2005). In In re Zeitler, the attorney's ethical conduct began in 1976 when he was suspended for one year for, among other things, dishonesty and fraud. In 1980, 1995, 1999, and 2000, the Supreme Court imposed additional sanctions against the attorney ranging from a two-year suspension to an admonishment. In the current case, the Supreme Court reviewed three cases where the attorney effectively mishandled and abandoned three cases. Ultimately, the Supreme Court found that enough was enough despite the DRB's recommendation for a three-year suspension. Three cheers for the Supreme Court for throwing this attorney out of our noble profession. A three-year suspension would have meant nothing to this dishonest attorney, and the Supreme Court's decision to disbar him will help foster confidence from the public that attorneys can police themselves.

What, if anything, must you do if you have a case involving injuries caused by a vaccine? If the vaccine is included in the federal Vaccine Table, you must file a petition with the United States Court of Federal Claims, which has a special master who adjudicates and administers vaccine claims. See 42 U.S.C.A. § 300aa. This system is informally known as the Vaccine Court. If you file a lawsuit without first filing a petition and obtaining a final adjudication, courts must dismiss the case. See 42 U.S.C.A. § 300aa-11(a)2(B). Once the Vaccine Court renders its decision, a claimant can choose to accept the award/decision, or reject it and pursue traditional tort remedies. Be careful and check the federal statute before filing any lawsuit involving a vaccine.

ETHICS UPDATE PART II: Can an attorney who drafts a will be a beneficiary of the estate? It may seem like a simple negative answer to some, but two recent ethics opinions demonstrate that many attorneys are not aware of RPC 1.8C, which states that "a lawyer shall not . . . prepare on behalf of a client an instrument giving the lawyer . . . any substantial gift unless the lawyer . . . is related to the client." In the past few years, one lawyer received a reprimand and another was admonished for violating RPC 1.8C. See In re Hock, 172 N.J. 349 (2002); In re Ginsberg, unreported (2004). In both cases, the lawyers claimed that the testator was a close friend, but the DRB and Supreme Court found that friendship is not a family relationship, and therefore, discipline was warranted. Be careful and aware of RPC 1.8C. If your client still demands that you be a beneficiary, refer the client to another lawyer to prepare the will.

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 [email protected].

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