Appellate Advocacy & Post-Trial Practice

*Results do not guarantee a similar result.

Walter Kawalec (Mount Laurel, NJ) obtained an affirmance of the dismissal of a plaintiff’s claim against a rehabilitation facility. The plaintiff, a resident in the facility, alleged that while being transferred from her wheelchair to the toilet, with the assistance of a rehabilitation assistant, the assistant pushed her from behind, after which she heard a pop in her knee and felt a stabbing pain. The plaintiff did not present expert testimony from an expert who would testify as to the standard of care for such assistants in transfer assists, arguing that no expert was necessary and that the jury could decide whether negligence was present based on their own common knowledge. The Appellate Division affirmed the dismissal of the case, noting that the plaintiff was required to present expert testimony in order to properly evaluate the assistance provided by the aide and whether it fell below the applicable standard of care. Schwartz v. Kessler Inst. for Rehab., 2021 WL 2640617 (N.J. Super. Ct. App. Div. June 28, 2021). 

Walt also convinced the New Jersey Appellate Division to affirm grants of summary judgment in two employment discrimination/retaliation cases. In Sanders, the plaintiff sued her employer, a governmental agency, alleging discrimination based on her disability and retaliation for filing a previous discrimination suit, and she filed aiding-and-abetting claims against fellow employees. The Appellate Division affirmed the dismissal of the case on summary judgment, finding that the failure to move the plaintiff to a position she desired did not constitute an adverse employment action or failure to accommodate as she suffered no adverse effect on her salary or benefits and did not materially alter her working conditions. The court also addressed the concerns her physician had when she sought the accommodation, even though she was not transferred to a position in which she preferred to work, and found that the trial judge properly rejected her claims. Sanders v. Div. of Children & Family Servs., 2021 WL 2011514 (N.J. Super. Ct. App. Div. May 20, 2021). In the LaCorte appeal handled by Walt, the plaintiff filed suit against her former employer, a non-profit agency, and its manager for alleged gender discrimination and retaliation for filing a workers’ compensation claim. Thousands of pages of documents were exchanged in discovery which demonstrated the legitimate, long-standing performance deficiencies that were the actual basis for her termination. The Appellate Division affirmed the dismissal on summary judgment, rejecting the plaintiff’s arguments that the motion judge engaged in a subjective analysis of the facts and made factual findings on disputed issues. The court also found that she failed to demonstrate that further discovery would supply the missing elements to her cause of action, or a prima facie case of gender discrimination or workers’ compensation retaliation. LaCorte v. Disabled Info. Awareness & Living, Inc., 2021 WL 1997261 (N.J. Super. Ct. App. Div. May 19, 2021).

Walt also obtained an affirmance of summary judgment in a premises liability case where the plaintiff asserted he tripped and fell in a supermarket, which exacerbated his epilepsy. The discovery period ended without the plaintiff producing an expert’s opinion that causally connected the medical complaints to the fall. The plaintiff claimed that his treatment for cancer caused his inability to timely obtain an expert’s opinion. The plaintiff’s motion to extend discovery was denied. The defendant supermarket moved for summary judgment on the grounds that the plaintiff failed to present an expert opinion linking his fall to his allegedly worsened epilepsy. The plaintiff then filed a cross-motion for additional time. At the hearing, the judge expressed that, in the absence of the plaintiff’s willingness to present some indication that the report would be produced, it would not allow a further extension and that fairness to the defense required entry of summary judgment. On reconsideration, the plaintiff presented a “preliminary summary” from his doctor, relying on plaintiff’s wife’s statements to link the epilepsy to the fall, but reconsideration was denied. The Appellate Division found that the plaintiff failed to show exceptional circumstances to justify a further extension of discovery and discounted the “preliminary summary” submitted on reconsideration as an improper attempt to expand the record and reargue the motion. The court held that plaintiff could not establish a prima facie case absent a proper expert report, and summary judgment was proper. Benjamin v. Wegmans Food Markets, Inc., 2021 WL 1885949 (N.J. Super. Ct. App. Div. May 11, 2021).

 

_{Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}