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The Supreme Court in Washington v. Perez clarified application of the adverse inference charge as applied to a party’s failure to call an expert. In that case, the defense had named two experts who provided opinions as to the extent of the plaintiff’s alleged injuries. However, for reasons not elaborated upon by defense counsel, neither of whom were called to testify at the time of trial. The plaintiff’s attorney sought and the judge agreed to issue an adverse inference charge. Moreover, in closing plaintiff’s counsel alluded to some nefarious concealment on the part of the defense in their failure to call the experts. The Supreme Court reversed the trial court finding error in issuing the adverse inference charge to the jury, explaining that, in regards to experts, the charge is appropriate in only the rarest of circumstances.
Plaintiff alleged to have fallen off of a defective chair while at McDonalds. Following a two week trial, Dan Jahnsen fielded a verdict on behalf of McDonalds wherein the jury awarded the plaintiff a total of $8,000 finding her 25% comparatively fault. Notably, the plaintiff boarded nearly $200,000 in medicals following a series of three surgeries to different areas of her body, despite the fact that the emergency room records immediately following the incident noted only minimal injury. As for liability, the defense admitted that the chair that caused plaintiff to fall wobbled due to a missing bolt. Defense also did not dispute the plaintiff’s claim that she fell due to the condition of the chair. Notwithstanding, the jury found comparative negligence on the part of the plaintiff and the judge molded the $8,000 award accordingly.
Shoplifters Beware — Motion for Summary Judgment for Merchant Accusing Plaintiff of Shoplifting Offense
The Federal District court dismissed the plaintiff’s case in its entirety following our motion for summary judgment made on behalf of the client, a national retail store. Plaintiff, a minor, had claimed emotional injuries following his arrest for suspicion of shoplifting in the store. The plaintiff’s friend with whom he was shopping ultimately admitted to taking the item in question. However, the plaintiff had been arrested along with his friend after fleeing the store when approached by the manager. Both were ultimately located and the police drafted complaints against the two teenagers, which the complaining manager then signed. Plaintiff claimed that the manager should have known he did not steal the item from the store as his friend fessed-up to the crime prior to the arrest. The court agreed with the argument on summary judgment that the merchant had a reasonable basis to suspect the plaintiff had committed an act of shoplifting and therefore was not liable for any “damages.” Any client who would like more information on this case, please feel free to contact email@example.com
The music was hopping and the the singles were doing The Hustle to the beat of the Black Eyed Peas. All was good until the plaintiff went down mid-spin, ostensibly due to a spilled drink on the dance floor, sustaining a significant wrist fracture. The dance party organizers had rented a banquet hall and supplied a DJ for the singles event. The plaintiff filed suit against the banquet hall owners, as well as the singles dance party organizers. On our motion for summary judgment at the close of discovery, the trial judge agreed that the dance party defendants did not breach any duty of care owned to the dance party attendees with respect to a transient hazardous condition in the premises rented. So put on your dance shoes ’cause I got a feelin’… and contact Vicki Connolly for more information on this case.
The Institution of Continuing Legal Education requested Terry Bolan to provide a lecture on Dram Shop liability issues in a seminar entitled, “It’s All About the Alcohol” No, that’s not a joke. The lectures were even preceded by a lovely wine tasting event, and thank you pregnant Amy Papa for the extra wine chips. Terry has a developed a power point presentation that can be tailored to your needs, just give us a call if you are interested.
L. Patrick Dacey had recently tried the case of Pacheco v. Duck Town to conclusion, which resulted in a “low-cause.” That is a Daceyism term meaning the jury’s verdict was far lower than anticipated by plaintiff given the injuries, usually lower than the offer, and always considered a win. I asked Pat for the details on the appeal, but he is apparently too busy prepping for his next case.
Appellate Division Upholds Jury’s Defense Verdict Finding Counsel’s Opening and Closing Statements Proper
Dan Jahnsen had tried a case to verdict in which the plaintiff, a former postal employee, claimed significant injuries when an alleged errant “post-con” operated by his client, the only named defendant, struck her. The defendant had denied the incident ever occurred. The jury rendered a verdict in favor of the defense finding no cause of action existed. The plaintiff appealed the verdict, alleging various nefarious statements were made by defense counsel (Dan Jahnsen in case you lost track) during opening and closing statements. Among the various arguments of plaintiff that the Appellate Division summarily debunked, was that counsel referred to a radiologist defendant had retained but did not intend to call for trial testimony. The court found that since the plaintiff had opened the door, mentioning the doctor became fair game. Postscript: The Supreme Court is expected to clarify the extent to which a party may obtain an adverse inference charge for failing to call an expert retained. Post-Postscript: Contact Dan Jahnsen to discuss further this case or the real meaning of the phrase, “having a monkey on your back”.
Dan Jahnsen and Vicki Connolly provided an awe inspiring review of the application of the Affidavit of Merit Statute to a riveted audience consisting of national third party claims administrator. Ok, maybe not awe inspiring, but nobody fell asleep during the presentation. Anyone interested in such a seminar, please contact Vicki Shea Connolly.
The New Jersey Appellate Division upheld the Chancery Court’s dismissal of the Plaintiff’s claim against her Co-Op whereby she sought to force the Co-Op Board to allow plaintiff to enclose the balcony on her condominium. The plaintiff’s complaint included allegations of oppression of a minority shareholder, breach of a fiduciary duty, and civil conspiracy. The Chancery Court had agreed with the arguments presented by BJD and systematically dismissed each count of the plaintiff’s complaint. Among other things, the Chancery Court found application of the Business Judgment rule appropriate such that it would not interfere with the decision of the Co-Op Board in denying the plaintiff’s application. The appellate court upheld the decision of the chancery court in its entirety. For a copy of the decision, contact Vicki Shea Connolly.
Pacheco v Ducktown Tavern
Patron allegedly ejected by our bartender, suffered a fractured foot. Three day trial where the plaintiff’s demand rose to 150K after a 10K offer. Jury came back at 60% on our client and 40% on Plaintiff with gross damages of 20K.
The net verdict was 12K. We had settlement authority of 15K. The case is currently on appeal (not by us).
Bernstein v. Grasshopper
Trip and fall case at our client’s restaurant. Three day trial. The Plaintiff had two surgeries for a snapped quadriceps tendon with a 66K medical lien. No cause on comparative negligence: 72% comparative on Plaintiff.
State Farm v. Deutscher Club
PIP reimbursement claim brought by State Farm Indemnity Company against the Deutscher Club of Clark seeking reimbursement of PIP benefits paid for injuries sustained in a motor vehicle of approximately $179,000.
In lieu of arbitrating the matter in Arbitration Forums, the parties agreed to go to submit to binding arbitration with a Judge. We asked the judge to simply award what percentage of fault he thought was attributable to the Deutscher Club The plaintiff was found 80% at fault, and we agreed to pay the 20% of our exposure. In so doing, we gave the judge the opportunity to fashion an award of a low percentage of fault against the Deutscher Club while still not having the affect of denying plaintiff recovery.
This innovative approach made this forum palatable to plaintiff’s attorney.
Koponosh v. Rite Aid
The firm was happy that for three solid weeks Terry Bolan was on trial in Mercer County defending a rainy day slip and fall claim which ultimately resulted in a verdict of no cause for action.
The former insurance claims rep plaintiff claimed various and sundry injuries, including a closed head injury and had managed to convince the state to award her total disability following the accident.
The Plaintiff’s pretrial settlement demands slowly fell from well over $500,000 to a rock bottom of 75K before verdict. The defense offer at $50,000 initially made two years before trial never wavered. Even though the store manager admitted that there was no wet floor sign in place at the time of plaintiff’ fall, the jury found that the store’s negligence for failing to have the sign in place was not a proximate cause of plaintiff’s fall.
Karrish v. Quality Medical Transport. (2009) [Medical transport] [DEATH] Ocean County, Toms River NJ – Attorney DANIEL S. JAHNSEN. This matter involved a plaintiff being transported from the hospital bed to home bed by an ambulance provided by our client, Quality Medical Transport. Plaintiff fell between her wheelchair and bed suffering a fractured hip. She was hospitalized, developed post surgical complications and died. Damages were wrongful death of a 78 year of women and medical lien of over $100,000. Plaintiffs demand was $350,000 and authority was extended to $100,000. After 4 day trail, jury found no negligence on our client, Quality Medical Transport service.
Huffin v. Beam Brothers (2011) [Trucking] Ocean County, Toms River NJ – Attorney DANIEL S. JAHNSEN. Plaintiff was a 50 year old postal worker at a distribution facility who was struck on a loading dock by an industrial sized “Post Con” used to load mail into trucks. The Post Con was allegedly being moved across the loading dock by an employee of our client, Beam Brothers Trucking Company- a contractor utilized by the postal service. Plaintiff had two herniations in her lumbar spine requiring fusion and rendering her totally disabled and unable to work. Lost wages past and future were calculated to be in excess of $850,000. Demand was policy limits of $1,000,000. The case was tried over a two week period before a jury found for the defense.
Ambassador v. Kaufer (2012) [Legal Malpractice] Ocean County, Toms River NJ – Attorney DANIEL S. JAHNSEN. This was a strict liability legal malpractice claim brought against our client/attorney who failed to preserve a fire loss claim against an insurance company by filing it within the one year limitation period provided in the insurance policy. Damages were alleged underpayment by $75,000 in addition to counsel fees owning under Saffer v. Willoughby 143 N.J. 256 (1996). Demand was $300,000 prior to trial.
At trial a motion in limine was made to bar any evidence of the underpayment of insurance without competent proof, in the form or opinion testimony, from a licensed adjuster as to the amount owed under the terms of the policy. Plaintiff’s lawyer countered with proof of continued negotiations with the insurer which admitted that there was an underpayment but also provided evidence of continued negotiations following the one year limitations period. An application then followed for an involuntary dismissal based upon case law clearly establishing that ongoing negotiations toll the limitations period. Thus, it was argued the only attorney who committed malpractice was actually plaintiff’s new lawyer. The court in a written opinion, granted the defense application and which decision was upheld on appeal.
Meakins v. Romamelli (2012) – [Legal Malpractice] Atlantic County, Atlantic City, NJ – Attorney DANIEL S. JAHNSEN. This was an attorney malpractice case involving a land transaction. We represented an attorney who admittedly failed to make certain that there was an adequate septic approval to accommodate an 80 seat restaurant. As a result, his client who sought to open an 80 seat restaurant was limited to a 50 seats and suffered an ongoing $10,000 per month loss of revenue. Initial demand was $500,000. Owing to the fact that liability was admitted and damages were mounting, the focus was upon “curing the malpractice” which involved gaining approval for the installation of an additional septic field. Settlement with the former client restaurant owner was for $100,000 to pay for the new septic and the business losses to date. An assignment was also taken to pursue an action against the developer of the restaurant for misrepresentation and fraud in the contract. Judgment in favor of the client against the developer was entered in the amount of $275,000 after a two week trial.
Perez v. Applebees-(Nov. 2010) This matter was tried in Passaic County and involved a first party dram shop claim. The plaintiff alleged to have been out at various establishments on the night in question and finished his episode of drinking at our client’s facility. His blood alcohol level was in the range of .21% at the time of alleged last serve. Considering that plaintiff weighed in excess of 400 lbs., a considerable amount of alcohol needed to be consumed to arrive at the level. Plaintiff was involved in a single car collision resulting in quadriplegia. Medicals up to trial exceeded $1,000,000 and plaintiff life care expert placed $9,400,000 of future care. Demand prior to trial was the policy limits of $1,000,000. Matter settled for $500,000 after two days of trial.
Randle v. Pleasure Lounge. Jan 2011) This was a third party dram shop tried before Judge Powers in Bergen County. The matter was transferred to this office on the eve of trial after an offer of the full $1,000,000 limits was rejected. The facts involved a plaintiff who was working, but mentally challenged being picked up from work by a friend, who had spent the afternoon at our clients bar. Before plaintiff realized the co-defendants level of intoxication, a single car collision against an overpass occurred. Plaintiff suffered multiple fractures to both legs, internal injuries, and was rendered permanently disabled and institutionalized. Medicals to date exceeded $500,000 and future medicals were placed at $3,000,000. The jury found for plaintiff and assessed 20% liability on our client and awarded $500,000 for a net recovery of $100,000 for pain and suffering. The Jury further awarded the past and future medicals which totaled $3.7 million but were subject to issues on appeal given a lack of competent testimony on plaintiff’s pre-injury mental issues. The matter ultimately settled for $600,000
130 Maple Avenue
Red Bank, NJ 07701