Kevin is a shareholder with the firm's Casualty Department where he practices in the areas of premises liability, motor vehicle liability, UM/UIM litigation and medical provider fraud and special investigation as well as Personal Injury Protection (PIP) litigation. He has extensive experience in motor vehicle liability and auto negligence, premises liability litigation, as well as handling PIP litigation for several carriers. He has successfully handled hundreds of cases ranging from motor vehicle accidents, UM/UIM litigation, PIP litigation and slip and fall liability. His practice in the area of fraud investigation consists of assessing and analyzing fraud by both medical providers and falsified claims brought by his client's insureds. He has handled countless auto negligence claims including M.I.S.T. cases involving minor impact soft tissue damage claims. He has represented a broad range of individual carriers in a wide range of law suits, including some high exposure dealing with commercial carriers.
In the course of his career, Kevin has taken several matters to trial, including many jury trials for both auto negligence and UM/UIM litigation. He is also skilled in alternative dispute resolution forums including mediation and arbitration.
After receiving his Bachelor of Science degree from Pennsylvania State University in Administration of Justice in 1994 where he was Deans List 1993-1994, Kevin completed an internship with the Abington Police Department where he was involved in multiple investigations and worked with detectives in questioning witnesses, obtaining evidence and providing information to prosecutors for criminal trials. Kevin received his juris doctor from Widener University in Wilmington, Delaware, while attending the extended/night division program and maintaining a full -time position as a paralegal/law clerk for a plaintiff's personal injury firm. Kevin participated and was a member of the Widener Law rugby team where he played for the four years he attended law school. He received the Certificate of Achievement Award in Pre-Trial Methods for excellence in legal writing.
Kevin is frequently asked by clients and industry organizations to lecture on a variety of topics concerning auto negligence law, UM/UIM litigation and PIP litigation. He has lectured for various organizations including the South Jersey Claims Association, Camden County Bar Association and New Jersey Special Investigators Association (NJSIA).
Kevin is an active member of the Swedesboro Woolwich Little League (SWLL) and volunteers his time coaching his children in softball, baseball and flag football.
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Defense Digest
New Jersey Appellate Division Rejects Contention that Ongoing Storm Rule Does Not Apply to Privately Owned Commercial Property
September 1, 2023
Key Points: The Appellate Division rejects contention that the “ongoing storm rule” does not apply to privately owned commercial property. Appellate court confirms that the holding in Pareja v. Princeton International Properties was not that the ongoing storm rule should apply only to public property. Appellate Division affirmed that commercial property owners, whether privately owned or publicly owned, “do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. In Smith v. Costco Wholesale, 2023 WL4307729 (N.J. Super. App. Div. July 3, 2023), the New Jersey Appellate Division upheld the ruling of the trial court that had granted summary judgment to the defendant, Costco, holding that the plaintiff could not establish the defendants owed her a duty of care under the ongoing storm rule adopted by the Supreme Court in Pareja v. Princeton International Properties, 252 A.3d 184 (N.J. 2021). The court held the plaintiff’s argument that the ongoing storm rule does not apply to privately owned commercial property lacked merit and that no exception to the ongoing storm rule applied. On March 7, 2018, Smith slipped and fell on snow and ice on the sidewalk in front of a Costco in North Plainfield, New Jersey, while exiting the store. On the day of the incident, the Governor of New Jersey had declared a state of emergency for all of the state due to inclement weather from a major snowstorm. Between 1:30 a.m. and 12:00 p.m., approximately one-half inch of snow fell. After 12:00 p.m., as the temperature settled at freezing, snowfall became heavy, accumulating at a rate of one-to-two inches per hour. By 5:30 p.m., the rate of precipitation started to lessen, ceasing entirely at approximately 8:30 p.m. A total of approximately eight inches of snow accumulated throughout the duration of the storm. During the storm, Smith drove to Costco, parked, and went inside to shop. The storefront was not far from where she parked her vehicle. Her receipt demonstrated she left the store at 2:13 p.m. Carrying only her purse, Smith left the store to get her car, intending to drive it back to the entranceway in order to load the items she bought into her vehicle. She stated she was told by one of the store employees to leave her cart in the exitway of the store. As Smith walked to her vehicle, and before she entered the parking lot, she slipped backwards and fell in the area between the entrance doors and the red bollards, injuring herself. Smith stated there were several inches of snow on the ground when she fell. Before the trial court, Smith argued that Pareja only applies to public property. The per curiam Appellate Division opinion, issued by Judges Richard J. Geiger and Maritza Berdote Byrne, agreed with Judge Lynott that the question of whether a sidewalk is public or private is immaterial to the Supreme Court’s holding in Pareja. The Appellate Division stated, “[t]he New Jersey Supreme Court adopted the ongoing storm doctrine in Pareja, holding that ‘commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.’” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. The court opined that “[p]laintiff seems to derive the support for her argument from a single sentence in Pareja: ‘For the first time, this court considers the adoption of the ongoing storm rule, under which a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.’” “It is axiomatic ‘public walkways’ are not synonymous with public property.” Later in the Pareja opinion, the court held that “under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” “The first statement is merely a recitation of the issue,” the court held. “There is no indication anywhere in the opinion that the court intended to apply the ongoing storm rule only to public property, nor does logic or case law support such a conclusion.” The trial court also found no exception to Pareja was applicable, ruling that no evidence existed to prove that the defendants “exacerbated the risk of harm to the plaintiff,” other than the risk presented by the snowstorm itself, or that “a pre -existing condition, such as uncleared remnants of prior snow events, caused or contributed in any way to the [p]laintiff’s accident.” The Appellate Court noted that it was undisputed by the parties that Smith’s slip and fall occurred during the snowstorm. In fact, the storm did not end until many hours after she fell. Thus, the ongoing storm rule applied, relieving the defendants of any duty of care they may have owed the plaintiff. Smith argued the ongoing storm rule did not apply because her injury occurred on private property owned by the Costco defendants. In Smith’s view, Pareja was meant to apply only to incidents occurring on public property, not private property. The appellate court found this argument without merit, holding that, “[b]ased upon a plain reading of Pareja, there is no indication the Supreme Court’s ruling was limited in this manner.” Smith’s attorney has said that he intends to file for certification with the New Jersey Supreme Court. For now, the law for commercial property owners, whether privately owned or publicly owned, is that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. If the Supreme Court grants the plaintiff’s request for certification, then there is a possibility the court may adopt a new standard. Until then, commercial landowners can and will continue to rely upon the “ongoing storm doctrine” as a safe haven to protect them from liability exposure during an inclement weather event. *Kevin is a shareholder in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6406 or kmmcgoldrick@mdwcg.com. Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey 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. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
Defense Digest
The Impact of the DiFiore Case on Defense Medical Exams
December 1, 2022
Key Points: New Jersey Appellate Division holds plaintiffs bear the burden of justifying the presence of third parties or recording devices at defense medical exams. New Jersey Appellate Division issues guidelines for third-party recording in defense medical exams. New Jersey Appellate Division updates guidelines for defense medical exams. New Jersey Appellate Division rules that plaintiffs require court permission to record or have a third party observe independent medical exams. New Jersey Rule 4:19 permits an adverse party to require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by an expert. Defense medical exams (DMEs) and the reports generated following the exam are often at the crux of developing a defensive strategy. Aside from the notice and scheduling requirements, the rule offers little in terms of the manner in which the exam is to be conducted. On May 3, 2022, the New Jersey Appellate Division decided the matter of DiFiore v. Pezic, 275 A.3d 58 (N.J. App. Div. May 3, 2022). The court revisited whether injured plaintiffs are allowed to bring a third party or a recording device to a DME. Prior to DiFiore, the Appellate Division had not addressed this issue since deciding B.D. v. Carley, 704 A.2d 979 (N.J. Super. App. Div. 1998), 24 years ago. In DiFiore, the Appellate Division reexamined this issue in three unrelated personal injury cases: DiFiore v. Pezic, Remache-Robalino v. Boulos, and DeLeon v. The Achilles Foot and Ankle Group. In all three cases, the plaintiffs had cognitive limitations, psychological impairments or language barriers, and plaintiffs’ counsel, over defense objections, requested that their clients be accompanied by a third party and/or be permitted to record the DME by audio or visual means. In all three cases, the trial courts issued different rulings on how the DME should proceed. In DiFiore, the trial court precluded the plaintiff from bringing a third party or recording the DME by video, but allowed her to make an audio recording of the DME. In Remache-Robalino, the trial court denied the plaintiff’s request to record the DME by audio means. Lastly, in DeLeon, the trial court denied the plaintiff’s request to have a third party at the DME and issued an order requiring the plaintiff’s DME to proceed unmonitored and unrecorded. All three decisions were appealed and consolidated by the Appellate Division. Upon review, and with participation of the New Jersey Association for Justice, New Jersey Defense Association, and Office of Attorney General, the DiFiore court held: A disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by the trial judge on a case-by-case basis with no absolute prohibitions or entitlements; Despite the contrary language in B.D. v. Carley, it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, are appropriate in a particular case; Given the advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff; To the extend that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged; If the court permits a third-party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam; and If a foreign or sign language interpreter is needed for the exam, the examiner shall utilize a neutral interpreter agreed upon by the parties, or, if such agreement is not attained, an interpreter selected by the court. What we can take from DiFiore is that it now overturns the previous parameters set forth in B.D. v. Carley. Since 1998, Carley has long held that plaintiffs were entitled to have the DMEs recorded by an unobtrusive recording device. DiFiore notes what has often been questioned by Carly, that it offers little guidance as to the exams themselves, the manner in which they are to be conducted and what potentially could lead to conflicting trial court interpretation. The question becomes, does DiFiore provide more clarity than what has been in place for 24 years or does it leave more questions to be answered? Although it does not completely prohibit third-party observation or the recording of an examination, it does place the burden upon the plaintiff to justify the condition being sought in the event of a dispute between parties, and, thereafter, the court is to decide whether to permit the observation or recording on a case-by-case basis. By placing the burden on plaintiffs to establish special conditions that warrant the presence of third parties and recording devices, the court’s decision makes clear that the use of such measures is the exception rather than the rule. We expect that the presence of third parties and recording devices at DMEs will be limited to circumstances where the plaintiff is very young or very old, or where he or she has significant cognitive impairments, psychological problems, or language barriers that warrant the use of such measures. DiFiore comes more than two decades after Carley and reflects how litigation has changed since. The New Jersey Supreme Court has granted leave to appeal, and only time will tell if DiFiore becomes the new norm, or if the Supreme Court will fill in the gaps that the case leaves behind.
