October 2003, No.5

October 2003, Vol. I, No. 5

When Can a Late Expert Report Be Served? Only if the party certifies that the information was not reasonably available by the exercise of due diligence, which is required by R. 4:17-7. In a recent medical malpractice case, O'Donnell v. Ahmed, 363 N.J. Super. 46 (Law Div. 2003), the defense served an expert report after the discovery end date and after the first trial date. The attorneys for both sides had previously prepared an Order fixing the discovery end date, but the defendant still failed to provide an expert report. The Law Division rejected the defendant's attempt to amend his interrogatories because his counsel failed to provide the requisite certification. The court also found that there was no reason to extend the discovery end date because there was no showing of exceptional circumstances, which is required to extend discovery after the discovery end date has elapsed. See R. 4:24-1(c). The trial court explained that exceptional circumstances include, but are not limited to, an attorney's health problem, a shortage of attorneys because of attorneys leaving the firm, death, or injury. Although Best Practices can be overly restrictive and short-sighted, this Court correctly rejected the defendant's request because he and his counsel failed to comply with the discovery schedule.

Can a Seller's Verbal Representations Undermine Written Warnings? Yes. In reversing the trial court, the Appellate Division concluded that a reasonable jury (is there any other kind) could conclude that a live demonstration of the use of a boat was "a 'counteracting representation' that undermined the effectiveness of the printed warnings accompanying the product." Levey v. Yamaha Motor Corp., 361 N.J. Super. 312 (App. Div. 2003) (citing Jerry J. Phillips & Robert E. Pryor, Products Liability § 6.07 at 6-45 (rev. 2002). For those of you who are interested, a prospective purchaser of the boat suffered injuries when a salesman from the dealer demonstrated how to use the boat - the demonstration mirrored the one by the Yamaha representative, which contradicted the stated warnings and instructions regarding safe uses of the boat. This ruling seems intuitive, and it is hard to understand why the trial court granted summary judgment for Yamaha.

What Must You Do When a Client Is Injured at an Amusement Park? File an accident report with the operator of the park. If you do not, your client will have his case dismissed. N.J.S.A. 5:3-31 et seq. provides that a person injured at an amusement park must file an accident report with the operator within 90 days or the right to sue is lost. The statute provides for an extension of time for a year from the accident if (1) there is "sufficient reason" for failing to file the accident report and (2) the operator is not "substantially prejudiced." In Lopez v. Gillian's Pier, 359 N.J. Super. 410 (App. Div. 2003), a man failed to file a report because he did not learn that a roller coaster probably caused his stroke until ten months after the accident. The Appellate Division concluded that the man had no case. Why not impose the equities of the discovery rule? This statute imposes an unnecessary hurdle on plaintiffs, and has effectively closed the court house to a legitimate claimant.

Does the Jurisdictional Limit of the Special Civil Part Include Attorney's Fees? No, so long as the attorney's fees cannot be calculated when the action commences. See Surf Cottages Homeowners Assoc. Inc. v. Janel Assoc. Inc., 362 N.J. Super. 62 (App. Div. 2003). In Surf Cottages, the plaintiffs obtained a judgment against the defendant for unpaid assessments. The judgment along with attorney's fees and costs exceeded $10,000, which was the amount of controversy at the time (for those of you who do not know, the limit is now $15,000). See R. 6:1-2(a)(1). Given Lettenmaier v. Lube Connection, Inc., 162 N.J. 134 (1999), which held that attorney's fees in consumer fraud cases are excluded from the amount in controversy, this decision was a logical extension of the law.

Rule Change for Prejudgment Interest: Plaintiffs are no longer permitted to receive prejudgment interest on future economic losses. See R. 4:42-11. Make sure to separate future economic losses from the remaining damages when calculating prejudgment interest.

Correction. I am sorry to confess that we made our first editing oversight in last month's mailing. The first briefing of last month's mailing discussed emotional distress in sexual harassment cases. We failed to cite Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 360 N.J. Super. 265 (App. Div. 2003). I have to blame my sloppy editor, who also happens to be the author. Ten lashes!

Contributions. If anyone has an interesting case, rule interpretation, ethical opinion, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail [email protected] so that we can continue to provide the Bar with this monthly update.

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