Preview
BUR L 001369-17 07/01/2019 Pg 1 of 4 Trans ID: LCV20191150976
FILED WITH THE COURT
SupeRroR CouRr oF NEw JERSEY JUL 0l 2019
BURLINGTON VICINAGE
SUSAN L, CLAYPOOLE, J.S.C
CHAMBERS OF Burlington County Court House
49 Rancocas Road
Susan L. Claypoole PO Box 6555
Mount Holly, NJ 08060
Judge
(609) 288.9500 ext. 38813
(609) 288-9476- Fax
July 1,2019
Stephen M. Tatonetti, Esq.
DuBois, Sheehan, Hamilton, Levin & Weissman, LLC
511 Cooper Street
Camden, NJ 08 102
Mark V. Oddo, Esq.
DuBois, Sheehan, Hamilton, Levin & Weissman, LLC
5l I Cooper Street
Camden. NJ 08102
Sungkyu Lee, Esq.
Law Offices of Styliades and Jackson
701 A Route 73 South, Suite 420
Marlton Executive Park, 4'h Floor
Marlton, NJ 08053
RE: Terrv Dunn v. Liberty Mut I Insurance Companv. et al
Docket No. L-1369-17
Dear Counsel:
This Letter Order shall serve in place of a more formal Order regarding the issues
raised on the record on July l, 2019. For the sake ofjudicial economy, the Court will not
restate the parties' arguments at length. The Court will address each issue in tum.
1. Whether LMIC Should be thc Named Dcfendant
Defendant LMIC argues that it should not be the named defendant in this matter. rather
the named defendant should be the toftfeasor. This is so, Defendant LMIC asserts, because
if the jury were to be told that the defendant in this case is an insurance carrier, then the
insurance carrier may be unduly prejudiced given a juror's potential to award a higher
verdict against an insurance carrier. Plaintiff opposed this request, arguing that thejury has
the right to know who the defendant in this case is, and, moreover, positing that ajury might
actually be less inclined to consider a high award when the defendant is an insurance carrier.
ln support of its position, Plaintiff relied up on the case of Bardis v. First Trenton Ins. Co
397 N.J. Super. 138 (App. Div. 2007). The Courr finds this reliance to be misplaced.
In Bardis, the Appellate Division questioned the wisdom of our general rule about not
identif,ing the insurer in a UIM trial as the defendant. Bardis, ,uoru, i97 N.J. Super. at I 5l
I
BUR L 001369-17 07/01/2019 Pg 2 of 4 Trans ID: LCV20191150976
n. 3. In fact, the Appellate Division went so far as to opine that a contrary rule would be
preferable if coupled with an appropriate instruction that the defendant's identity is
irrelevant. See ibid.
On appeal, the Sup reme Court rebuked these notions. In Bardis v. First Trenton lns. Co
199 N.J. 265 (2009), the Court explained as follows:
In other circumstances, we have expressed our concern that references to insurance
coverage might distract jurors from a fair evaluation of the evidence. !9q Ronran v
Mitchell, 82 N.J. 336, 347 -48, 413 A.2d 322 ( 1980) (commenting on risk that voir
dire questions might create inappropriate focus on insurance). Our Appellate
Division has likewise recognized that references to insurance rnight motivate an
award of damages based on a jury's perception of an insurer as having "deep
pockets." Krohn v. New Jers Full Insurance Underrvrite , 3 l6 N.J. Super
477, a82 @pp. Div. 1998), certif.denied, 158N.J.74(1999).)
ln point offact, the UIM claim is a contractual one, arising out ofthe insurance policy
issued to plaintiffby h isown insurer. $99 Zirger v. Gen. Accident [ns. Co., 144 N.J.
327 , 333, 676 A.2d 1065 (1996); Krohn, supra, 316 N.J. Super. at 483, 720 A2d
640. The claim, horvever, has little to do rvith the contract of insurance and
everything to do with the accident in which plaintiff was involved. It is only the
happenstance of the tortfeasor's minimal coverage as compared with plaintiffs
injuries that brings plaintiffs insurer, with its more generous UIM coverage, into the
courlroom. In reality, itisthe accident and the driver who caused it,rather than the
insurer from which plaintiffnow seeks a recovery for noneconomic damages, that is
in any rvay relevant to the issues to be decided.
ln considering the issues on appeal, the Appellate Division commented that it
"questioned the wisdom" of our general rule about not identifring the insurer in a
UIM trial as the defendant. Bardis, supra, 397 N.J. Super. at l5l n.3, 936 A.2d 476.
Although the panel opined that a contrary rule would be preferable, if coupled with
an appropriate instruction lhat the defendant's identity is irrelevant, see Wenz v
Allstate Ins. Co ,316 N.J. Super. 570, 580, 720 A.2d 989 (App.Div.l998), we
disagree. ln the context ofa UIM claim, in which the identity ofthe insurer is not
relevant to any issue, and in which the jury's decision must focus on the behavior of
the actual tortfeasor, the rule advanced by plaintiff and the amicus caries the greater
risk of confusion. That rule would increase the risk ofjury confusion because the
jury would first be told that the defendant is an insurer, but would then be advised
that this is irrelevant and should play no role in their evaluation of the claim. That
rule, by injecting an entirely irelevant fact into the trial, creates a risk that far
outweighs the remote possibility that the jury might be confused if they are not so
advised. Contrary to the view expressed by our concuning colleague, this rule is not
designed'to hide . . . the fact that the case [is] about insurance coverage,,'post at
283,971 A.2d at 1073, because in a UIM trial it is the judge who decides the coverage
question when molding the verdicl to account for the tortfeasor,s coverage. Nor is it
an eftbn to "feed[ ] fictions to the jury" or to protect insurers. post at 2g2, 91 I A.2d
at 1072. Rather, the rule is intended only to protect the integrity ofthe factfinding
process by leaving wholly irrelevant considerations aside.
Bardis, supra, lg9 N.J. at 275-17.
2
BUR L 001369-17 07/01/2019 Pg 3 of 4 Trans ID: LCV20191150976
Ultimately, the Court left the decision to the sound discretion of the trial couft, while
noting that in the context of a UIM trial the insurer's identity is ordinarily irrelevant. kL at
277 .
Here, the Court. in its discretion, rvill grant Defendant's request. The identity ol'
Def'endant LMIC is irrelevant to this matter and may serve only to confuse thc jury or to
bear undue prejudice on Defendant LMIC.
For the foregoing reasons, Defendant LMIC's request is hereby (;IIANTEI)
2. l'laintiffs Ilequest to Add an Open-fnded Question - Listed as Section 5 of Pre-
Trial Submission
Plaintiff req uests that the following open-ended question be added to Voir Dire pursuant
to AOC Directive #4-07: "When you are watching television and a lawyer advertisement
comes on what are your first thoughts?"
Plaintif'fasserts that this question is necessary given the deleterious effect the
proliferation of attorney advertisements have had on the profession. Defendant LMIC.
however, argues that this question is sufficiently covered by Voir Dire No. 10, as well as by
the standard civil forms.
Based upon a review ofthe above question, as well as the parties' arguments, the Court
will deny Plaintifls request to add in this question. The Court finds that such a question
would be duplicative, as Voir Dire No. 10 and the standard civil forms sufficiently address
any potential bias held by a potentialjuror.
For the foregoing reasons, request is hereby'DENIED
Plaintiff--s
3. Stipulation of Whethe r De fenda nt Will Discuss Second Accident
Plaintiff raised an issue regarding a potential stipulation regarding whether Defendant
LMIC will discuss the second accident. Because Defendant LMIC has not agreed to the
stipulation, the Court will not find one.
{. C)biection durins Dr. Oakin's De Bene Essc Dcposition
Finally, there was an objection placed on the record during the De Bene Esse deposition
of Dr. E. Michael Okin, M.D. The objection appears at pages 67-68 of the transcript.
Specifically, Defendant LMIC objects to the line of questioning on the basis of James v.
Ruiz,440 N.J. Super.45 (App. Div. 2015).
As the Appellate Division in Ruiz. sup@, held:
the combined impact oi [N.J.R.E.] 703 and 808 is to limit the ability of a
testifying expefi to convey to a jury either (l ) objective "facts or data" or (2)
subjective "opinions" based upon such facts, which have been set forth in a
hearsay report issued by a non-testifying expert. In either instance, the
testifying expert may not serve as an improper conduit for substantive
declarations (whether they be objective or subjective in nature) by a non-
testifying expert source.
J
BUR L 001369-17 07/01/2019 Pg 4 of 4 Trans ID: LCV20191150976
James, supra, 440 N.J. Super at 66.
Therefore, it is well settled that a non-testifying expert's opinion is only
admissible, whether as a "business record" or as "facts or data . . . upon which a"
testifying expert relies, if it consists of "routine"--as opposed to "disputed or
complex"-- findings. James, supra, 440 N.J. Super at 63, 66. Courts have
"traditionally admitted 'routine' findings of experts contained in medical records
that satisfy the business record exception, but ha[ve] excluded 'diagnoses of
complex medical conditions' within these records." Id. at 63 (citing State v.
Matulewicz, 1 0l N.J. 27, 32 (1985)).
Here, based upon a review olthe transcript, the Court tinds that the question
regarding Dr. Gupta's January 14,2015 PIP IME must be stricken pursuant to James.
For the foregoing reasons, Delendant LMIC's objection is SUSTAINED.
The part olthe transcript appearing atT67:12 through T68:16 is hereby stricken.
Sinccrel-v.
Susan L. Claypoole, J C "<
1
Preview
BUR L 001369-17 07/01/2019 Pg 1 of 4 Trans ID: LCV20191150976 FILED WITH THE COURT SupeRroR CouRr oF NEw JERSEY JUL 0l 2019 BURLINGTON VICINAGE SUSAN L, CLAYPOOLE, J.S.C CHAMBERS OF Burlington County Court House 49 Rancocas Road Susan L. Claypoole PO Box 6555 Mount Holly, NJ 08060 Judge (609) 288.9500 ext. 38813 (609) 288-9476- Fax July 1,2019 Stephen M. Tatonetti, Esq. DuBois, Sheehan, Hamilton, Levin & Weissman, LLC 511 Cooper Street Camden, NJ 08 102 Mark V. Oddo, Esq. DuBois, Sheehan, Hamilton, Levin & Weissman, LLC 5l I Cooper Street Camden. NJ 08102 Sungkyu Lee, Esq. Law Offices of Styliades and Jackson 701 A Route 73 South, Suite 420 Marlton Executive Park, 4'h Floor Marlton, NJ 08053 RE: Terrv Dunn v. Liberty Mut I Insurance Companv. et al Docket No. L-1369-17 Dear Counsel: This Letter Order shall serve in place of a more formal Order regarding the issues raised on the record on July l, 2019. For the sake ofjudicial economy, the Court will not restate the parties' arguments at length. The Court will address each issue in tum. 1. Whether LMIC Should be thc Named Dcfendant Defendant LMIC argues that it should not be the named defendant in this matter. rather the named defendant should be the toftfeasor. This is so, Defendant LMIC asserts, because if the jury were to be told that the defendant in this case is an insurance carrier, then the insurance carrier may be unduly prejudiced given a juror's potential to award a higher verdict against an insurance carrier. Plaintiff opposed this request, arguing that thejury has the right to know who the defendant in this case is, and, moreover, positing that ajury might actually be less inclined to consider a high award when the defendant is an insurance carrier. ln support of its position, Plaintiff relied up on the case of Bardis v. First Trenton Ins. Co 397 N.J. Super. 138 (App. Div. 2007). The Courr finds this reliance to be misplaced. In Bardis, the Appellate Division questioned the wisdom of our general rule about not identif,ing the insurer in a UIM trial as the defendant. Bardis, ,uoru, i97 N.J. Super. at I 5l I BUR L 001369-17 07/01/2019 Pg 2 of 4 Trans ID: LCV20191150976 n. 3. In fact, the Appellate Division went so far as to opine that a contrary rule would be preferable if coupled with an appropriate instruction that the defendant's identity is irrelevant. See ibid. On appeal, the Sup reme Court rebuked these notions. In Bardis v. First Trenton lns. Co 199 N.J. 265 (2009), the Court explained as follows: In other circumstances, we have expressed our concern that references to insurance coverage might distract jurors from a fair evaluation of the evidence. !9q Ronran v Mitchell, 82 N.J. 336, 347 -48, 413 A.2d 322 ( 1980) (commenting on risk that voir dire questions might create inappropriate focus on insurance). Our Appellate Division has likewise recognized that references to insurance rnight motivate an award of damages based on a jury's perception of an insurer as having "deep pockets." Krohn v. New Jers Full Insurance Underrvrite , 3 l6 N.J. Super 477, a82 @pp. Div. 1998), certif.denied, 158N.J.74(1999).) ln point offact, the UIM claim is a contractual one, arising out ofthe insurance policy issued to plaintiffby h isown insurer. $99 Zirger v. Gen. Accident [ns. Co., 144 N.J. 327 , 333, 676 A.2d 1065 (1996); Krohn, supra, 316 N.J. Super. at 483, 720 A2d 640. The claim, horvever, has little to do rvith the contract of insurance and everything to do with the accident in which plaintiff was involved. It is only the happenstance of the tortfeasor's minimal coverage as compared with plaintiffs injuries that brings plaintiffs insurer, with its more generous UIM coverage, into the courlroom. In reality, itisthe accident and the driver who caused it,rather than the insurer from which plaintiffnow seeks a recovery for noneconomic damages, that is in any rvay relevant to the issues to be decided. ln considering the issues on appeal, the Appellate Division commented that it "questioned the wisdom" of our general rule about not identifring the insurer in a UIM trial as the defendant. Bardis, supra, 397 N.J. Super. at l5l n.3, 936 A.2d 476. Although the panel opined that a contrary rule would be preferable, if coupled with an appropriate instruction lhat the defendant's identity is irrelevant, see Wenz v Allstate Ins. Co ,316 N.J. Super. 570, 580, 720 A.2d 989 (App.Div.l998), we disagree. ln the context ofa UIM claim, in which the identity ofthe insurer is not relevant to any issue, and in which the jury's decision must focus on the behavior of the actual tortfeasor, the rule advanced by plaintiff and the amicus caries the greater risk of confusion. That rule would increase the risk ofjury confusion because the jury would first be told that the defendant is an insurer, but would then be advised that this is irrelevant and should play no role in their evaluation of the claim. That rule, by injecting an entirely irelevant fact into the trial, creates a risk that far outweighs the remote possibility that the jury might be confused if they are not so advised. Contrary to the view expressed by our concuning colleague, this rule is not designed'to hide . . . the fact that the case [is] about insurance coverage,,'post at 283,971 A.2d at 1073, because in a UIM trial it is the judge who decides the coverage question when molding the verdicl to account for the tortfeasor,s coverage. Nor is it an eftbn to "feed[ ] fictions to the jury" or to protect insurers. post at 2g2, 91 I A.2d at 1072. Rather, the rule is intended only to protect the integrity ofthe factfinding process by leaving wholly irrelevant considerations aside. Bardis, supra, lg9 N.J. at 275-17. 2 BUR L 001369-17 07/01/2019 Pg 3 of 4 Trans ID: LCV20191150976 Ultimately, the Court left the decision to the sound discretion of the trial couft, while noting that in the context of a UIM trial the insurer's identity is ordinarily irrelevant. kL at 277 . Here, the Court. in its discretion, rvill grant Defendant's request. The identity ol' Def'endant LMIC is irrelevant to this matter and may serve only to confuse thc jury or to bear undue prejudice on Defendant LMIC. For the foregoing reasons, Defendant LMIC's request is hereby (;IIANTEI) 2. l'laintiffs Ilequest to Add an Open-fnded Question - Listed as Section 5 of Pre- Trial Submission Plaintiff req uests that the following open-ended question be added to Voir Dire pursuant to AOC Directive #4-07: "When you are watching television and a lawyer advertisement comes on what are your first thoughts?" Plaintif'fasserts that this question is necessary given the deleterious effect the proliferation of attorney advertisements have had on the profession. Defendant LMIC. however, argues that this question is sufficiently covered by Voir Dire No. 10, as well as by the standard civil forms. Based upon a review ofthe above question, as well as the parties' arguments, the Court will deny Plaintifls request to add in this question. The Court finds that such a question would be duplicative, as Voir Dire No. 10 and the standard civil forms sufficiently address any potential bias held by a potentialjuror. For the foregoing reasons, request is hereby'DENIED Plaintiff--s 3. Stipulation of Whethe r De fenda nt Will Discuss Second Accident Plaintiff raised an issue regarding a potential stipulation regarding whether Defendant LMIC will discuss the second accident. Because Defendant LMIC has not agreed to the stipulation, the Court will not find one. {. C)biection durins Dr. Oakin's De Bene Essc Dcposition Finally, there was an objection placed on the record during the De Bene Esse deposition of Dr. E. Michael Okin, M.D. The objection appears at pages 67-68 of the transcript. Specifically, Defendant LMIC objects to the line of questioning on the basis of James v. Ruiz,440 N.J. Super.45 (App. Div. 2015). As the Appellate Division in Ruiz. sup@, held: the combined impact oi [N.J.R.E.] 703 and 808 is to limit the ability of a testifying expefi to convey to a jury either (l ) objective "facts or data" or (2) subjective "opinions" based upon such facts, which have been set forth in a hearsay report issued by a non-testifying expert. In either instance, the testifying expert may not serve as an improper conduit for substantive declarations (whether they be objective or subjective in nature) by a non- testifying expert source. J BUR L 001369-17 07/01/2019 Pg 4 of 4 Trans ID: LCV20191150976 James, supra, 440 N.J. Super at 66. Therefore, it is well settled that a non-testifying expert's opinion is only admissible, whether as a "business record" or as "facts or data . . . upon which a" testifying expert relies, if it consists of "routine"--as opposed to "disputed or complex"-- findings. James, supra, 440 N.J. Super at 63, 66. Courts have "traditionally admitted 'routine' findings of experts contained in medical records that satisfy the business record exception, but ha[ve] excluded 'diagnoses of complex medical conditions' within these records." Id. at 63 (citing State v. Matulewicz, 1 0l N.J. 27, 32 (1985)). Here, based upon a review olthe transcript, the Court tinds that the question regarding Dr. Gupta's January 14,2015 PIP IME must be stricken pursuant to James. For the foregoing reasons, Delendant LMIC's objection is SUSTAINED. The part olthe transcript appearing atT67:12 through T68:16 is hereby stricken. Sinccrel-v. Susan L. Claypoole, J C "< 1