.

What's Hot in Workers' Comp

Appellate Division Affirms Dismissal of Construction Zone Death Suit Against employer and Engineering Firms Based on Workers’ Compensation Bar and Failure to Serve Affidavits of Merit.

Estate of Mike Alexander, Deceased, et al. v. Northeast Sweepers, et al., No. A-1486-23 (June 19, 2025)

August 1, 2025

by Kiara K. Hartwell

On July 11, 2014, Michael Alexander was struck and killed by a sweeper truck while working in an active construction zone on the New Jersey Turnpike. Northeast Sweepers owned the truck, which was driven by Christopher Hackett. Crisdel Group, Inc. was the decedent’s employer and was hired as the general contractor. HAKS Engineers, Architects and Land Surveyors, P.C. was retained by New Jersey Transit Authority to provide “professional services” for the resurfacing project, including supervision to ensure compliance. John Schweppenheiser, a HAKS employee and licensed professional engineer, was the project manager. HAKS then subcontracted the construction inspection services to Johnson, Mirmiran & Thompson, Inc. (JMT). Lawrence Fink, a JMT employee and licensed professional engineer, was the supervisor. 

Christopher Hackett drove his sweeper around a milling machine and struck Alexander, who was taken to a hospital and passed away approximately a month later. While it was Crisdel’s practice to assign a dump truck to each sweeper truck, there was none near Hackett’s sweeper at the time of the accident. After the accident, OSHA cited Crisdel for violations; failure to provide a place of employment free from recognized hazards and to establish a pre-planned traffic pattern. It was noted to be a serious violation, but not willful or repeated. 

In October 2014, the plaintiffs filed a complaint, which they amended in January 2016 to add claims against HAKS and JMT. In the amended complaint, the plaintiffs alleged intentional wrongs, noting that HAKS and JMT were responsible for supervision of the site and that they had negligently supervised the project. Because Alexander and his estate received workers’ compensation benefits, Crisdel’s answer asserted the affirmative defense that the plaintiffs’ claims were barred by the Workers’ Compensation Act. HAKS’ answer demanded compliance with the affidavit of merit statute, and JMT’s answer made no reference, but did assert a general defense of failure to state a claim. 

In June 2017, HAKS and JMT moved to dismiss the claims for failure to serve affidavits of merit. After oral arguments, the trial court issued orders dismissing the claims, noting the negligence was in their professional capacities as engineers, therefore, affidavits of merit were needed. The plaintiffs then filed a motion for reconsideration and submitted two affidavits from professional engineers, who certified that the work HAKS and JMT performed only involved supervision, not professional engineering services. The trial court denied the motion for reconsideration in September 2017. 

After the Appellate Division granted leave to appeal, the orders dismissing the claims against HAKS and JMT were reversed for a more complete record on whether the claims required the affidavit of merit requirement. On remand, additional expert discovery was performed, and all parties produced more expert reports. In April 2018, Crisdel moved for summary judgment, and after oral arguments, the trial court granted summary judgment as the plaintiffs failed to produce evidence that Crisdel committed an intentional wrong as this was the type of accident that occurred in constructions areas. 

In May 2019, HAKS and JMT moved for summary judgment, arguing the plaintiffs’ claims involved professional engineering service malpractice claims. The trial court agreed and granted summary judgment, noting the expert reports and deposition testimony revealed the duties of HAKS and JMT were within the practice of engineering. As such, the plaintiffs needed to submit an affidavit of merit and failure to do so required dismissal of their claims. 

The other defendants were all dismissed at various times. In December 2023, the plaintiffs resolved their claims against Northeast Sweepers and Hackett. The plaintiffs then appealed the June 22, 2018, order granting summary judgment to Crisdel and the July 26, 2019, orders granting summary judgment to JAKS and JMT.

The Appellate Division reviewed, under the de novo standard, and delved into the Workers’ Compensation Act as well as case law regarding intentional wrongs. While the plaintiffs identified six areas (work lighting, audible backup alarms, properly functioning mirrors, dedicated dump trucks, use of spotters and written traffic control plan) that were allegedly known and ignored by Crisdel, the Appellate Division found none of them were evidence of an intentional wrong within the meaning of the Workers’ Compensation Act. The Appellate Division also noted the OSHA violations were only “serious” and not “willful.” As such, the Appellate Division affirmed the grant of summary judgment to Cristel.

As for the summary judgment granted for HAKS and JMT, the Appellate Division reviewed the case law for a claim against a licensed professional covered by the affidavit of merit statute. The Appellate Division noted it was undisputed that both defendants were engineering and architectural companies and that HAKS was retained by New Jersey Transit Authority for professional engineering services. HAKS then retained JMT, and under the terms of the subcontract, all work performed by JMT was required to be done under the “direct supervision” of “licensed professional” engineers. Given the undisputed evidence showed HAKS and JMT were providing professional engineering services and the plaintiffs failed to timely serve affidavits of merit, the Appellate Division affirmed the grant of summary judgment to HAKS and JMT. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 2025, 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Delaware Superior Court Clarifies Pleading Standard for Legal Malpractice Claims

In the matter of Edelstein v. Kirschner, No. N25C-09-018 FJJ, 2026 Del. Super. LEXIS 45, at *1 (Super. Ct. Jan. 29, 2026), the plaintiff law firm sued its former client for unpaid legal fees in the amount of $4,399.35. The former client asserted a counterclaim alleging legal malpractice. More, specifically, the former client claimed that his lawyer committed malpractice be recommending that he settle an underlying lawsuit by entering into a stipulated judgment for an excessive amount with interest that was accruing at “an outlandish” interest rate. The law firm moved to dismiss the counterclaim on the basis that its former client had not alleged facts reflecting that he could prove the case within the case. That is, facts reflecting that his attorneys caused him to lose the underlying case. The Superior Court held that while a legal malpractice plaintiff in cases arising from underlying litigation must prove the case within the case to survive a summary judgment motion, he does not need to plead facts reflecting as much in order to survive a motion to dismiss. While this case addresses the pleading requirements of a legal malpractice case in Delaware, it also serves as reminder that chasing unpaid legal fees from a former client can often give rise to a legal malpractice counterclaim. Attorneys seeking to collect unpaid legal fees should ensure that the fees they seek are for a significant amount, which would be recoverable if a judgment is obtained. Otherwise, the effort could backfire.

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.

Thought Leadership

Pennsylvania Supreme Court Takes Up the Gist of the Action Doctrine

The gist of the action doctrine has been a hot topic in legal malpractice cases in Pennsylvania over the last several years.  Beginning in 2014, the Pennsylvania courts applied the gist of the action doctrine to professional liability actions, following the Pennsylvania Supreme Court’s opinion in Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014).  In Bruno, the court applied the gist of the action doctrine to a professional negligence claim, and found that a negligence claim was not barred simply because the parties were in a contractual relationship where the gist of the claim sounded in negligence. Thereafter, courts in Pennsylvania applied the gist of the action doctrine to breach of contract claims as well, finding that where the allegations sounded in negligence, a plaintiff could not recast a negligence claim as one for breach of contract. This was important because of the distinction between statutes of limitations: negligence claims must be brought within two (2) years, while breach of contract claims can be brought within four (4) years.  Then, last year, the Pennsylvania Superior Court held that the gist of the action doctrine does not apply to breach of contract claims as seen through two opinions. These opinions were Swatt v. Nottingham Village, 342 A.3d 23 (Pa. Super. 2025) and Poteat v. Asteak, et al., 350 A.3d 198 (Pa. Super. 2025). That is, the gist of the action doctrine can bar a negligence claim but it cannot bar a breach of contract claim.  This month, the Pennsylvania Supreme Court granted the petition for allowance of appeal in Poteat.  The Supreme Court phrased the issue for consideration as follows: Whether the Superior Court majority’s holding conflicts with this Court’s holding in Bruno v. Erie Insurance Co., 160 A.3d 48 (Pa. 2014), as well as Superior Court opinions that applied Bruno, and departs from almost 200 years of controlling precedent that distinguishes between causes of action in contract and tort based upon the nature of the duty that was allegedly breached? Attorneys on both sides of legal malpractice matters no doubt look forward to clarification on these issues from our Supreme Court.