In a recent opinion, the New Jersey Supreme Court held that a change in the trial testimony of a defendant-physician in a medical malpractice litigation did not warrant a new trial. In the underlying trial, the physician's testimony deviated from that given in his discovery responses, including his deposition. Plaintiff's counsel did not object to this deviation at trial, and ultimately a jury found in favor of the physician defendant. The Appellate Division, in as split opinion, overturned the verdict and ordered a new trial. However, the Supreme Court reversed the appellate court's decision, holding that there was no prejudice to Plaintiff in the failure of plaintiff's counsel to object at trial regarding the difference in testimony. On the contrary, they noted that counsel for Plaintiff indicated it was "strategic and tactical" why no objection was made. Specifically, Plaintiff's counsel believed that the changed testimony now favored the Plaintiff because the defendant-physician admitted to reviewing data from a clinical trial of the prescribed medication and same was rife with dangerous side effects. Thus, Plaintiff's counsel believed that Plaintiff's position that the physician must have known the dangers prior to prescribing was supported by the testimony. However, the jury ultimately denied compensation to the Plaintiff. The Supreme Court's main focus was on whether or not the change in testimony prejudiced the Plaintiff. Citing to a prior decision named McKenney that the Appellate Division relied upon, the Supreme Court recapitulated that in McKenney the change in testimony was "egregious and clearly prejudicial" while in the matter at bar, the change was "arguably favorable" to the Plaintiff. Consequently, the jury verdict was affirmed. (T.L. v. Jack Goldberg, M.D.)
Where there is no contractual privity with a property owner, a subcontractor cannot sue an owner for unpaid work performed except under the Construction Lien Law. Consequently, in the event that the lien fund available under the Construction Lien Law is insufficient to make a subcontractor whole, the subcontractor can only seek additional payment from the general contractor who hired them, not the owner. In a recent matter before the Appellate Division, a landscaping contractor was owed $87,696.40 from the general contractor, who failed to make payment. The landscaper filed a lien against the property and prevailed on such claim. However, since there was only a limited lien fund available, the landscaper only received its pro rata share of $35,300.94 from the lien fund, leaving an unpaid balance of over $50,000. The landscaper then attempted to recover the remaining balance from the property owner directly by asserting quasi-contractal claims in the Law Division, but the matter was ultimately dismissed. The Appellate Division affirmed such dismissal, stating that, "New Jersey law is clear that subcontractors who are not paid by the general contractor who hired them cannot sue the property owners who they lack privity." (Ash Maple, LLC, et. al. v. Jeral Construction Company, Inc., et. al.)
Peter J. Vazquez, Jr.