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February 2010, No. 1

What Must You Do To Satisfy The Federal Torts Claim Act Involving A Car Accident With a Federal Employee?

Although most car accident cases are filed in state court, not so if your client has an accident with a car driven by a federal employee. Before filing suit, you must file a torts claims notice, which differ from the torts claim notices that are served against New Jersey’s public entities. In White Squire v. United States Postal Service, 592 F.3d 493 (3d Cir. 2010), the Third Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff’s case because the tort claims notice failed to provide a sum certain in the notice. The Third Circuit held that the Federal Torts Claim Act’s sum certain requirement is jurisdictional, and when a plaintiff fails to provide a sum certain in the notice, jurisdiction is lacking. The Third Circuit rejected plaintiff’s claim that a sum certain could not be stated because plaintiff was still undergoing treatment. The Third Circuit reasoned that the Federal Torts Claim Act did not provide any exceptions. The Federal Torts Claim Act can be tricky so in the event that you get a case against a federal employee/entity, read White Squire.

Proposed Amendments to Civil Practice Rules. Please be advised that the Supreme Court Civil Practice Committee has made proposed amendments to the Civil Rules. If you would like to comment on an amendment, you must submit your comments to Glenn A. Grant, J.A.D., Acting Administrative Director of the Courts by April 14, 2010.

(1) 4:17-5, Objections to Interrogatories. The Committee found that general objections were improper, and thus, proposed an amendment that would abolish general objections and require specific objections to individual interrogatories. The Committee is proposing a similar amendment to abolish general objections in a response to a notice to produce (R. 4:18-1). Comment: Three cheers. General objections have no basis in the rules, and should be abolished. Also, just think of the amount of trees that will be saved!

R. 4:58-2c, Offer of Judgment. The current rule requires the offer to be compared to the judgment, which makes it almost useless in UM/UIM cases where the recovery is capped by the insurance limits. Therefore, the Committee is proposing to change the rule so that in UM/UIM cases, the offer is compared to the jury verdict. Comment: This proposal is long overdue, and provides teeth to the Offer of Judgment rule in UM/UIM cases. Without this amendment, plaintiffs cannot effectively use the Offer of Judgment rule because they must make the offer 20% less than the insurance limit, which limits the potential recovery. Moreover, the insurance companies have no incentive to accept the offer when the most that they could pay is the insurance limits. This proposal should be passed.

Can Defendant-Doctor Use a Physician as an Expert When the Proposed Expert Practices With Plaintiff’s Treating Doctor? The answer is no pursuant to Carchidi v. Iavicoli, 2010 N.J. Super. LEXIS 46 (App. Div. 2010). In Carchidi, the Appellate Division explained that although the Supreme Court in Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995), held that a defendant is permitted to call a treating doctor on the issue of causation, said holding does not apply when the defendant is seeking to call a doctor in the same treating group as plaintiff’s treating doctor. The Appellate Division reasoned that the proposed experts from defendant never treated plaintiff and had no personal knowledge of plaintiff’s treatment. More importantly, using these doctors violated N.J.R.E. 403 because plaintiff’s counsel would be bolstering defendants’ experts when he emphasized the qualifications of his client’s expert doctors. Given that defendants can obtain other doctors to provide similar testimony, they are not prejudiced. This decision appropriately balanced the equities and correctly analyzed the relevant evidence rule.

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].