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Superior Court of New Jersey, Appellate Division.



DOCKET NO. A–2202–12T3

    Decided: March 24, 2014

Before Judges Yannotti and St. John.Law Offices of Lorne M. Reiter, L.L.C., attorneys for appellant McLane Company, Inc., (Mr. Reiter, on the briefs). Giblin & Combs, L.L.C., attorneys for respondents Mitchell Reiter, M.D. and New Jersey Spine Specialists, L.L.C., (Christina M. Scarpa, on the brief).   Michael J. Lunga, attorney for respondent Michael J. Vives, M.D.

Defendant McLane Company appeals from an order entered by the Law Division on December 17, 2012, which dismissed its third-party complaint against Mitchell Reiter, M.D., New Jersey Spine Specialists, LLC, and Michael J. Vives, M.D. For the reasons that follow, we affirm.


We briefly summarize the relevant facts and procedural history.   In July 2010, plaintiff Arlene M. Kapuscenski filed a complaint in the Law Division, naming Hess Corporation and McLane as defendants.   She alleged that she was injured on Hess's property in Harrison, New Jersey, when one of McLane's employees “carelessly, negligently or recklessly” struck her with a hand cart.   Steve Kapuscenski, Arlene's spouse, asserted a claim for the loss of her services, society and consortium.

McLane filed an answer and a third-party complaint, naming Dr. Reiter, Spine Specialists, Dr. Vives, Overlook Hospital, Clara Maass Medical Center, and Christopher Boni, M.D. as third-party defendants.   McLane alleged that after the accident, plaintiff commenced a course of treatment with various health care providers, including third-party defendants.   In August 2009, Dr. Reiter and Dr. Vives performed a lumbar laminectomy and bilateral foraminotomies on various levels of plaintiff's spine, after which she developed neurolologic symptoms including severe postural headaches.

On August 14, 2009, Dr. Reiter performed another surgery, during which multiple dural tears were identified and repaired.   According to McLane, these tears “were missed and not found or repaired” during the first surgery.   On or after August 14, 2009, plaintiff began to experience low back pain, that worsened over time and became severe.   She also had occasional pain radiating into her lower extremities.

McLane asserted that, from approximately August 14, 2009, to April 1, 2010, plaintiff visited Dr. Reiter and complained of severe and persistent pain, which required use of prescription pain medications.   She also complained of other symptoms, including nausea and body aches.   McLane alleged that, in this time, Dr. Reiter failed to undertake “proper and reasonable testing” of plaintiff, which would have “resulted in a timely diagnosis of osteomyelitis and discitis developing in the lower back and manifesting in the symptoms that plaintiff described.”

McLane said plaintiff's symptoms had all the “hallmarks of a progressive deep postoperative spinal infection.”   McLane also claimed that Dr. Reiter did not take any steps to “validate an opinion that plaintiff's symptoms were related to a failed back syndrome or a behavioral and medication-related issue.”

McLane alleged that in March 2010, plaintiff was treated at Clara Maass Medical Center.   On April 16, 2010, plaintiff was admitted to Overlook Hospital, where Dr. Reiter performed a biopsy and started plaintiff on intravenous antibiotics.   Plaintiff remained at Overlook until April 21, 2010, when she was discharged to a care center at Clara Maass.

According to McLane, the biopsy confirmed a diagnosis of osteomyelitis and discitis at the L3–L4 level of plaintiff's spine.   In addition, an MRI of plaintiff's lumbar spine, performed on April 22, 2010, revealed findings consistent with discitis/osteomyelitis, and significant vertebral body destruction.   The findings also were consistent with angulation at L3–L4, and presumed epidural and paraspinal inflammatory changes.

On April 30, 2010, Dr. Reiter performed what McLane said was “an extensive lumbar salvage and reconstruction surgery” upon plaintiff.   The surgery was performed at multiple stages and was necessary due to the diagnosis of lumbar spinal osteomyelitis and discitis at multiple levels of plaintiff's spine.

McLane further alleged that third-party defendants were negligent in their treatment of plaintiff.   They allegedly failed to heed plaintiff's complaints, and did not undertake the appropriate evaluation and interpretation of her subjective complaints.   McLane claimed that if the third-party defendants had properly diagnosed the osteomyelitis and discitis during the seven-month period of time in which plaintiff's infection developed, “the infection could have been treated, avoiding the ultimate outcome.”

McLane additionally alleged that, as a direct and proximate result of the negligence of the third-party defendants, “plaintiff suffered a severe infection of the low back requiring both partial and complete removal of certain vertebrae and disc material and insertion of a permanent titanium cage where [plaintiff's] low back anatomy would otherwise be situated.”   According to McLane, plaintiff allegedly had many months of pain and suffering, and continues to suffer such pain.   McLane asserted that plaintiff's injuries were permanent and rendered her unable to pursue and enjoy her usual and everyday livelihood.

Based on these allegations, in count one, McLane sought indemnification and/or contribution under the common law for any damages awarded against it on plaintiff's complaint.   In count two, McLane sought contribution pursuant to the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A–1, and the Comparative Negligence Act, N.J.S.A. 2A:15–5.1. The trial court entered an order on December 7, 2011, severing the third-party action for discovery and trial.

In April 2012, McLane entered into a settlement agreement with plaintiff and agreed to pay her $1.5 million for the personal injuries.   On April 10, 2012, the trial court entered judgment against McLane and in favor of plaintiff, based on the terms of the settlement.1  McLane subsequently dismissed its claims against Overlook and Clara Maass.

On September 12, 2012, Dr. Reiter and Spine Specialists filed a motion to dismiss the third-party complaint.   They argued that, because plaintiff settled her claim against McLane, there would be no expert at trial to establish that McLane was liable, which was required for contribution.   Dr. Vives filed a cross-motion seeking dismissal of McLane's complaint on the same grounds.

Before the motions were heard, McLane withdrew count two of the third-party complaint, in which it sought contribution under the Joint Tortfeasors Contribution Law and the Comparative Negligence Act. McLane's attorney also informed the parties that it was stipulating to liability in the underlying action.   Therefore, McLane's counsel asserted that the motions were moot and should be withdrawn.   The motions were not withdrawn.

The judge heard oral argument on the motions on September 28, 2012.   Relying upon New Milford Board of Education v. Juliano, 219 N.J.Super.   182 (App.Div.1987), the judge determined that McLane's common law claim for indemnification could proceed, even though McLane settled plaintiff's claim in the underlying action.

The judge observed, however, that the issue as to whether McLane required an expert for its indemnification claim, which the movants had raised in their arguments, had not been resolved.   The judge noted that the trial was not scheduled until December 2012, and McLane would have to address that issue.

The judge entered an order dated September 28, 2012, denying the motions.   On October 12, 2012, the judge entered an amended order, dismissing count two of the third-party complaint.   In addition, on November 30, 2012, McLane dismissed its claims as to Dr. Boni.

The case was called for trial on December 3, 2012.   On the trial date, Dr. Reiter and Spine Specialists filed a motion to dismiss the third-party complaint because McLane had not provided expert testimony on the reasonableness of its settlement with plaintiff.   Dr. Vives also filed a motion to dismiss the third-party complaint against him.   He argued that McLane's expert was not qualified to testify, and McLane had not produced an expert opinion that would allow the indemnification claim to go before a jury.

The trial judge noted that the court rules require the parties to exchange their pre-trial information at least seven days prior to trial.   The judge said she could refuse to consider the motions, but noted that the third-party defendants had raised “a real issue in this particular case.”   The judge said she did not want to put “form over substance” and decided that the better course was to hear arguments on the motions.

McLane's counsel conceded that McLane did not have an expert to address the reasonableness of the settlement with plaintiff, but he argued that an expert was not required because this issue was not something that fell “outside of the ken of the average juror.”   McLane's counsel also stated that he could present expert testimony indicating that the third-party defendants deviated from the standard of care in their treatment of plaintiff, and the jury would be able to allocate damages among these parties.

However, counsel for Dr. Reiter and Spine Specialists argued that a decision on the reasonableness of a settlement required an assessment of many factors, and it was not a matter within the common knowledge of jurors.   Counsel for Dr. Vives agreed.   He also said that McLane's expert had not offered an opinion on the allocation of responsibility among the parties.   The judge stated that she would address the motions the following day.   She allowed the parties to provide her with additional facts or legal argument by e-mail that evening.

Counsel for the parties returned to court the following day.   Counsel provided additional arguments, after which, the judge placed her decision on the record.   The judge determined that a jury could not assess the reasonableness of the settlement without expert testimony.   The judge also determined that an expert was required to apportion damages among the parties.

The judge noted that the jury had to determine the extent to which plaintiff's original injuries were “increased” by the alleged negligence of the third-party defendants.   The jury had to “parse out” where McLane's liability ended and the liability of the third-party defendants began.   In addition, the jury would be required to assess the proportional responsibility of those parties.

In addition, the judge stated that there was no apportionment between the doctors “at all.”   They had just been “grouped together.”   The judge said McLane had to demonstrate how the doctors' “conduct individually, as well as collectively, increase[d] [plaintiff's] damages.”   The judge pointed out that the record “is silent on the distinction between the doctors.”

The judge noted that the record also was silent on the distinction between McLane's negligence and the doctors' alleged negligence.   The judge stated that McLane's stipulation to responsibility was not sufficient because jurors could not understand “what that means” for purposes of assessing damages.

The judge added that when a jury must apportion damages between those responsible for a fall and subsequent acts of alleged medical malpractice, the allocation is not “something within the ken of the average juror.”   Without an expert, the jurors would be left “to grapple with issues that ․ are [not] readily understandable.”   The judge noted that there was nothing in plaintiff's medical records that would help the jury make a decision regarding the proportional responsibility of the third-party defendants.

The judge concluded that McLane would not be able to satisfy its requirements in the damages part of the case.   The judge accordingly determined that the third-party complaint must be dismissed.   The judge entered an order dated December 17, 2012, memorializing her decision.   This appeal followed.


McLane argues that the judge erred by considering the motions to dismiss its complaint.   McLane contends that the third-party defendants should have filed their motions at least thirty days prior to the trial date, as required by Rule 4:46–1.   McLane also contends that the motions should have been served with the pretrial information exchange, at least seven days prior to the trial date, as required by Rule 4:25–7(b).

Here, the third-party defendants submitted applications which they called motions in limine.   But the motions did not seek to limit or bar any evidence or testimony.   Rather, they were motions for judgment pursuant to Rule 4:37–2(b).  The third-party defendants sought dismissal of McLane's complaint, arguing that, based on the facts and the law, McLane “has shown no right to relief.”  Ibid.

McLane correctly points out that the third-party defendants should have served these motions as part of the pretrial information exchange required by Rule 4:25–7(b).  However, that rule did not preclude the third-party defendants from making their motions during the trial, or asking the judge to relax the rules so that the motions could be considered before the trial began.

In our view, the judge did not abuse her discretion by electing to consider the motions before starting what was expected to be a lengthy jury trial.   In their pretrial information exchanges, the parties identified nine potential fact and expert witnesses.   The parties also indicated that they intended to introduce an array of medical billing records into evidence.

Furthermore, as we noted previously, several months before the trial, when arguing pretrial motions, the third-party defendants asserted that McLane had to present expert testimony on its indemnification claim.   The motion judge did not rule on the issue at that time but said McLane would have to address it.   Thus, McLane should have expected that the third-party defendants would seek a ruling on this issue at some point before or during the trial.

In addition, the judge afforded McLane an full opportunity to respond to the motions.   As we have explained, the judge heard oral argument on the motions on December 3, 2012, but did not rule that day.   The judge allowed counsel to provide her with additional facts and legal arguments by e-mail that evening.   The judge also reviewed the expert report and deposition testimony of McLane's expert, Dr. Stephen Graboff.   McLane was not prejudiced by having the issue resolved before the trial commenced, rather than after it had presented its case.

We are therefore convinced that the judge did not err by relaxing the applicable requirements of the court rules in order to avoid the unjustifiable expense and delay that would have resulted if the judge had waited until the end of McLane's case to consider the motions to dismiss.   R. 1:1–2(a).


Next, McLane argues that the judge erred by dismissing the complaint.   McLane contends that the judge erroneously determined that expert testimony was required for its indemnification claims.   We cannot agree.

N.J.R.E. 702 provides that, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

However, “[e]xpert testimony is required when the subject matter to be dealt with ‘is so esoteric that jurors of common judgment and experience cannot form a valid judgment’ ” on the issue to be resolved.  Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J.Super. 320, 341 (App.Div.2000) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).

Here, plaintiff brought suit against McLane for injuries she sustained when one of McLane's employees struck her with a cart.   McLane, in turn, alleged that the third-party defendants were negligent in their treatment of plaintiff, thereby causing plaintiff to sustain further injury.   McLane settled plaintiff's claim for $1.5 million, and sought indemnification from the third-party defendants for the portion of the settlement attributable to their alleged medical malpractice.

The trial court correctly determined that McLane's claim was governed by New Milford Board of Education v. Juliano, supra, 219 N.J.Super. at 182.   That case concerned injuries sustained by a thirteen-year-old girl when a volleyball stanchion fell on her foot.  Id. at 184.   She was treated by an orthopedist and consulted with a general surgeon.  Ibid. Several months after the accident, three of the girl's toes were amputated due to gangrene.   Ibid.

The girl's parents sued the Borough of New Milford, which sponsored the recreation program;  the New Milford Board of Education, which owned the stanchion;  and the stanchion's manufacturer.  Ibid. The girl's parents did not, however, bring an action against the orthopedist or surgeon.  Ibid. The lawsuit was settled for $200,000.  Ibid. The Borough and Board agreed to pay part of the settlement amount.  Ibid.

They then brought suit against the orthopedist and surgeon seeking reimbursement for the amount of the settlement attributable to the doctors' alleged medical malpractice.  Ibid. We held that the Borough and Board could seek indemnification from the defendant doctors.  Id. at 186–87.   We rejected the defendants' contention that the Borough and Board could not seek indemnification because they settled the underlying litigation.  Id. at 188.

We noted that, on remand, the Borough and Board would have to prove not only that the doctors committed malpractice but also the quantum of damages that could be reasonably imposed upon these defendants.  Id. at 188 n.2. We added that the damages part of the case would involve the reasonableness of the amount paid to settle the case, and the extent to which the girl's injuries “were increased by [the] defendant's malpractice.”  Ibid.

In this case, the trial judge correctly ruled that expert testimony was required to establish the reasonableness of McLane's settlement with plaintiffs.   In Kelly v. Berlin, 300 N.J.Super.  (App.Div.1997), we held that an expert was required to determine the reasonableness of a settlement of litigation.  Id. at 268–69.   We stated that “[t]he many factors that go into a settlement are not within the knowledge of the average juror.”  Id. at 269.

We noted that an expert in the settlement of claims, such as an experienced torts attorney or claims adjuster, was necessary to explain the various factors that are taken into consideration when a case is settled.  Ibid. We observed that the expert's testimony could include a comparison of similar claims in the area, an assessment of the strengths and weaknesses of the claim, and an analysis of how legal issues might affect the settlement amount.  Ibid.

McLane argues that Kelly is distinguishable on its facts because, in that case, the plaintiff was misdiagnosed and entered into a settlement on the basis of the incorrect diagnosis.  Id. at 261–62.   The facts in Kelly might be different but the principle enunciated in that case applies in this matter.   An expert is necessary to determine whether the $1.5 million settlement that McLane reached with plaintiff was reasonable.

The trial court also correctly determined that an expert was required to establish the basis for allocating responsibility between McLane and the third-party defendants.   As we have explained, Dr. Reiter and Dr. Vives performed the surgery on plaintiff on August 5, 2009.   However, Dr. Reiter treated plaintiff before and after that surgery.

Although Dr. Graboff asserts that both Dr. Reiter and Dr. Vives deviated from the applicable standard of care in their respective treatments of plaintiff, he offered no opinion as to any allocation of responsibility between plaintiff's initial injuries and Dr. Reiter's and Dr. Vives's alleged medical malpractice.

Dr. Graboff also offered no opinion on the allocation of responsibility between Dr. Reiter and Dr. Vives.   As the trial judge noted, without such evidence, any allocation of responsibility between McLane and the third-party defendants would be based on speculation.

We conclude that the judge correctly determined that expert testimony was required and, without such testimony, McLane's indemnification claim failed as a matter of law.



FN1. It appears that Steve Kapuscenski did not pursue his claim.   The settlement was with Arlene only..  FN1. It appears that Steve Kapuscenski did not pursue his claim.   The settlement was with Arlene only.


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