Lopez v. Ginarte, O’Dwyer, Gonzalez, Gallardo & Winograd, LLP, 2019 N.J. Super. Unpub. LEXIS 1537

Courts will allow plaintiffs time to develop proofs in order to conform to the court’s eve-of-trial dictates.

The plaintiff alleged the defendants negligently failed to develop evidence and expert testimony concerning the brain injury and economic loss he suffered as the result of a slip and fall accident. The plaintiff claimed that, due to the defendants' negligence, he was forced to settle his claim for a fraction of its value. The trial court granted the defendants' summary judgment motion and dismissed the complaint because the plaintiff's malpractice expert did not opine on the settlement value of his case if properly prepared. The court also denied the plaintiff's motion for reconsideration. However, the Appellate Division reversed and remanded, holding that the plaintiff should have been permitted to prove his damages by presenting to a jury a "case within a case.” The Appellate Division held that this method is a reasonable and acceptable way for a plaintiff to prove his damages—the difference between the settlement and the amount of money that would have been obtained by judgment. The Appellate Division also rejected the defendants' arguments that the trial court did not err in granting summary judgment. Like the trial court, the defendants overlooked the nature of the plaintiff's damages and the measure of damages as expressly set forth in Kranz v. Tiger, 390 N.J. Super. 135 (App. Div. 2007).

The Appellate Division’s ruling in this case has various implications that professional malpractice defense attorneys must be cognizant in representing clients facing issues on the eve of trial. From its holding, it is apparent that courts will allow plaintiffs time to develop proofs in order to conform to the court's eve-of-trial dictate. This case presents a slippery slope in favor of the plaintiffs’ bar to handle eve-of-trial rulings of the trial court and afford plaintiffs time to obtain evidence and experts to conform to a post-discovery ruling. Time will tell if the holding in Lopez will remain in place or will be overturned.


Case Law Alerts, 4th Quarter, October 2019

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.