New Jersey Appellate Division Holds That a Defendant is Only Required to Produce Surveillance Evidence After the Plaintiff Has Been Deposed

On September 3, 2015, the New Jersey Appellate Division reiterated the notion that trial courts should take a balanced approach when it comes to the discoverability of surveillance evidence obtained for purposes of litigation.

surveillance-152097_1280 (2)In Mernick v. McCutchen, the Appellate Division was tasked with assessing whether surveillance videos of a plaintiff were protected from discovery due to the work product doctrine. The plaintiff was injured in a car accident, and after the plaintiff filed her lawsuit, the defendants took surveillance videos of the purportedly injured plaintiff.  In their discovery responses, the defendants acknowledged that they possessed the surveillance videos but refused to produce the videos until after the plaintiff had been deposed. As a result, the plaintiff’s counsel refused to produce his client for deposition until the videos were provided. Read the rest of this entry »


NJ Appellate Division: Charitable Immunity Unavailable When a Plaintiff is on Premises as an Employee of a Third Party

The New Jersey Appellate Division affirmed a trial court’s ruling that a community college employee who was injured in a slip-and-fall at a nonprofit rehabilitation facility where she taught classes to nurses was not a beneficiary of the clinic’s charity and could not rely on the Charitable Immunity Act for a defense.   In Kostera v. Bacharach Institute for Rehabilitation, Dkt. No. A-1991-13T4 (N.J. App. Div. Aug 6, 2015), the Appellate Division also affirmed the $4 million jury award. Read the rest of this entry »


NJ Appellate Division Cracks Down on the Practice of Bootstrapping Expert Opinions

Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.

In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.

Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”
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