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.)
If you lend your car to someone who you know does not have a driver's license, should they be covered by your automobile's insurance PIP policy if they drive your car and get into an accident? The New Jersey Appellate Division has ruled unlicensed drivers should not be covered and are therefore ineligible for recovery of medical benefits under the personal injury protection provisions of the owner's auto insurance policy.
This decision builds upon prior case law and continues to refine who a "permissive user" of an automobile can be. The Appellate Division held that public policy bars an owner from giving "permission" to someone who cannot, and should not, legally be operating a vehicle on the roadways. In this particular case, the owner was the mother of the unlicensed driver and both of them lived at the same residence. Not only was knowledge imputed to the mother, but she admitted that she knew the driver was unlicensed. Although the terms of the insurance policy did not explicitly exclude coverage of unlicensed drivers, the Court examined public policy which forbids unlicensed drivers from operating vehicles on the roadways of this State. If you are not entitled to drive but chose to do so, then you are not entitled to the benefits provided by an automobile's PIP insurance coverage, even if you are operating the vehicle with the owner's permission. (Norma Blanco-Sanchez v. Personal Service Insurance Company)