- Comprehensive Neurosurgical, P.C. et al. v. The Valley Hospital et al. (087469) (Bergen County & Statewide) A-52-22 Supreme April 16, 2024 Oral Argument A-52-22 A-52-22- Part 1 Audio for A-52-22- Part 1 A-52-22- Part 2 Audio for A-52-22- Part 2 Close Summary A-52-22 Plaintiffs’ good faith and fair dealing claim properly survived summary judgment, but the jury was not correctly charged or asked to rule on that claim. The trial judge failed to instruct the jury that the only underlying contract to which the implied covenant could attach to had to be one beyond the rights afforded by the Bylaws. Adding to the significant uncertainty created by the jury charge and verdict sheet are the improper admission into evidence of the privileged emails and the improper remarks by plaintiffs’ attorney. Those errors, cumulatively, had the capacity to lead the jury to reach a verdict it would not have otherwise reached and thus deprived Valley of a fair trial. 1. A claim for breach of the covenant of good faith and fair dealing that is implied by law into every contract requires a plaintiff to demonstrate that the defendant’s alleged misdeeds prevented the plaintiff from enjoying the full benefit of a particular bargain. Although medical staff bylaws impose reciprocal legal obligations and rights between those who agreed to be bound, those obligations do not give rise to a traditional contract, to a claim for the traditional contract remedy of damages, or to a separate breach of the implied covenant claim. Instead, when a hospital violates its medical staff bylaws, equitable relief may be available. Thus, plaintiffs here would have been entitled to a hearing if Valley had violated the Bylaws by failing to provide one in the first place; the jury, however, expressly found that Valley did not violate the Bylaws. The Bylaws cannot constitute the underlying contract for purposes of plaintiffs’ separate breach of the implied covenant claim. (pp. 28-34) 2. Just as the Bylaws here offer no ground for a breach of an implied covenant of good faith and fair dealing claim, Valley’s administrative healthcare decision to award exclusive privileges to a particular group cannot on its own give rise to a claim for breach of the implied covenant of good faith and fair dealing. A hospital may not act in bad faith and simultaneously serve a “genuine” healthcare objective based on “reasonable and reliable” information. See Desai , 103 N.J. at 91-93. Physicians who are adversely affected by a hospital’s administrative healthcare decision may challenge that decision by arguing that it was not made in accordance with the standard set forth in Desai . Here, however, the trial judge concluded that plaintiffs’ challenge to the Valley’s grant of exclusive privileges was “subsumed” with their implied covenant claim. As a result, the legal principles related to Valley’s administrative decision became relevant only as to its defense to the implied covenant claim, and not as an asserted basis for money damages. (pp. 34-38) 3. The final basis advanced in the course of this litigation for finding that Valley was bound to act in good faith and deal fairly with plaintiffs is an alleged implied contract between the parties, one that goes “beyond the Bylaws.” Plaintiffs allege that, from Valley’s initial offer to join and collaboratively build Valley’s neuroscience department and from the parties’ course of dealings since plaintiffs joined, it can be reasonably inferred that an implied contract existed between plaintiffs and Valley that would allegedly support their expectation to indefinitely maintain their privileges and rights absent a valid administrative healthcare decision providing otherwise. In the event that plaintiffs could demonstrate that all the fundamental elements of contract formation had been established, their theory of an agreement beyond the rights afforded by the Bylaws would be contractual in nature. Among the three possible sources to support plaintiffs’ claim here -- the Bylaws, Valley’s administrative healthcare decision, and the alleged implied-in-fact contract between plaintiffs and Valley -- the only alleged source of mutual obligation to which the implied covenant of good faith and fair dealing could properly attach to is the implied-in-fact contract. (pp. 38-41) 4. The Court explains how the evidence in the record, taken in the light most favorable to plaintiffs, was sufficient to raise a factual dispute as to whether there was an implied-in-fact contract between plaintiffs and Valley and whether Valley acted in bad faith in revoking certain of plaintiffs’ privileges, such that the claim properly survived summary judgment. Although the claim properly reached the jury, however, the jury charge and verdict sheet did not properly instruct the jurors on the elements of the claim. Notably, the jury was given no law on how to measure Valley’s defense to the implied covenant claim, and consideration of the jury charge as a whole raises significant doubt as to whether the jury found the underlying contract for plaintiffs’ implied covenant claim to be some implied or oral agreement beyond the Bylaws, or just the Bylaws. The jury could have come to a different result had it been correctly instructed on the contract claims, especially because the underlying contract on the implied covenant claim -- purportedly an endless right to treat “unassigned” ER patients with special tools -- was not in writing. (pp. 41-52). 5. The emails between Valley and its general counsel for the purpose of legal advice, rather than business purposes, are protected by the attorney-client privilege. Valley did not place its general counsel’s pre-litigation legal advice “in-issue,” nor did it call its general counsel as a witness. Valley’s inadvertent disclosure of the emails -- allegedly consisting of 352 pages -- in the course of an exchange of about 57,000 documents in roughly two months did not amount to waiver of the attorney-client privilege. The parties’ discovery agreement’s claw-back provision anticipated precisely such an inadvertence. And admission of the emails into evidence was not harmless. Select emails in many ways became the centerpiece of plaintiffs’ case. On remand, if plaintiffs attempt to introduce emails from the batch Valley attempted to claw back, the judge should conduct a document-by-document review to determine whether the emails are privileged and thus not admissible. (pp. 52-58) 6. Certain comments by plaintiffs’ trial counsel in summation were improper. Plaintiffs’ trial counsel knew that Valley had evidence of sixty cases of patient transfers. The summation remarks implied, however, that there was evidence of only two cases of patient transfers, and that inaccurate statement impacted Valley’s contention that it made a valid healthcare decision. (pp. 58-61) 7. The cumulative errors here deprived Valley of a fair trial and warrant a new one. The Court sets forth specific guidance for the remand proceedings. (pp. 61-62) Close
- NAGLA ABOUELENEIN VS. NABIL SABBAHI (FM-12-1570-19, MIDDLESEX COUNTY AND STATEWIDE) A-2629-21 Appellate April 17, 2024
- STATE OF NEW JERSEY VS. G.N.W. (14-07-1248, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-3756-21 Appellate April 17, 2024
- ABEER A. ABU-GOUSH VS. ABDALLAH A. ABU-ZUBEDAH (FM-02-1706-21, BERGEN COUNTY AND STATEWIDE) A-0264-22 Appellate April 17, 2024
- OPTIONS IMAGINED, ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP (TAX COURT OF NEW JERSEY) A-1144-22 Appellate April 17, 2024
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- CLARA D. MARADIAGA, ET AL. VS. PROGRESSIVE INSURANCE COMPANY, ET AL. (L-1615-20, PASSAIC COUNTY AND STATEWIDE) A-2474-22 Appellate April 17, 2024
- ROBERT EDWARDS VS. HOUSING AUTHORITY OF PLAINFIELD, ET AL. (L-3714-21, UNION COUNTY AND STATEWIDE) A-2496-22 Appellate April 17, 2024
- HARRY VANWAGENEN, ET AL. VS. FORTRESS FENCE, LLC, ET AL. (L-0127-20, OCEAN COUNTY AND STATEWIDE) A-2498-22 Appellate April 17, 2024
- MARIO NAPOLITANO, ET AL. VS. EUROPEAN CONSTRUCTION PROFESSIONALS, LLC, ET AL. (L-1180-18, HUDSON COUNTY AND STATEWIDE) A-0960-23 Appellate April 17, 2024
- American Civil Liberties Union of New Jersey v. County Prosecutors Association of New Jersey (087789)(Essex County & Statewide) A-33-22 Supreme April 17, 2024 Oral Argument A-33-22 A-33-22-Part 1 Audio for A-33-22-Part 1 A-33-22-Part 2 Audio for A-33-22-Part 2 Close Summary A-33-22 CPANJ is neither a public agency under N.J.S.A. 47:1A-1.1 nor a public entity subject to the common law right of access. The ACLU’s factual allegations do not support a claim against CPANJ under OPRA or the common law. 1. OPRA applies only if the entity to which a request is directed meets the statutory definition of a public agency. For purposes of OPRA, the terms “public agency” or “agency” denote the entities specified in N.J.S.A. 47:1A-1.1, which include “any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.” The term “political subdivision” denotes a division of a state that exists primarily to discharge some function of local government, such as a county or municipality, as well as certain entities formed by counties and municipalities, such as parking authorities. The ACLU argues that CPANJ is an instrumentality of the county prosecutors. Accordingly, the core question in this appeal is whether a county prosecutor constitutes a “political subdivision” for purposes of OPRA. (pp. 14-22) 2. A county is indisputably a “political subdivision of the State” as defined in OPRA, N.J.S.A. 47:1A-1.1. The status of the counties themselves as political subdivisions under OPRA, however, has no bearing on the analysis. A county prosecutor is distinct from the county that the prosecutor serves for purposes of OPRA’s reach. A county prosecutor, like the Attorney General, is a constitutional officer who serves by virtue of gubernatorial nomination and Senate confirmation. Although a county exercises considerable control over the fiscal operations of the county prosecutor’s office, a county prosecutor’s law enforcement function is unsupervised by county government or any other agency of local government. In short, the county prosecutor is not the alter ego of the county itself, and does not constitute a “political subdivision” as that term is used in N.J.S.A. 47:1A-1.1. CPANJ, meanwhile, constitutes an organization in which the county prosecutors are members and is not the alter ego of the prosecutors themselves. Because a prosecutor does not meet the definition of a “political subdivision” under N.J.S.A. 47:1A-1.1’s plain language, CPANJ is not a public agency for purposes of OPRA. The ACLU’s factual allegations do not support its assertion that CPANJ is a public agency within the meaning of N.J.S.A. 47:1A-1.1. Because the ACLU did not seek the documents from a public agency in accordance with N.J.S.A. 47:1A-5 and -6, the Court does not reach the question whether the documents identified in its request constitute “government records” under OPRA. (pp. 22-26) 3. A public record under the common law is one that is made by a public official in the exercise of the official’s public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office. Here, the ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain the requested documents. It suggests no statutory or regulatory mandates of any kind addressing the records at issue. The ACLU does not allege that CPANJ maintains public documents in a public office; indeed, it does not dispute CPANJ’s assertion that it maintains no office at all. The ACLU identifies no precedential decision discussing, let alone upholding, a request for public documents served on a private entity such as CPANJ. In short, the ACLU asserts no factual allegations that would suggest that CPANJ constitutes an entity upon which a common law right of access request for documents may properly be served. The Court does not reach the question whether the documents that the ACLU requested from CPANJ would be considered common law public documents if requested from a public entity. (pp. 26-29) Close
- VERONICA (STORLEY) WILLIAMS VS. BOARD OF TRUSTEES, ETC. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) A-1316-21 Appellate April 18, 2024
- CHANDRA JATAMONI VS. KAVITHA DANDU (FM-12-1862-18, MIDDLESEX COUNTY AND STATEWIDE) A-3599-21 Appellate April 18, 2024
- JOEY CUTRI VS. TEC-CAST, INC., ET AL. (L-8474-19, BERGEN COUNTY AND STATEWIDE) A-0765-22 Appellate April 18, 2024
- STATE OF NEW JERSEY VS. GEORGE RAYFORD (18-05-0253, UNION COUNTY AND STATEWIDE) A-1684-22 Appellate April 18, 2024
- MICHAEL LEWIS VS. AUDREY GARDNER-SCHILLER (DC-008123-22, CAMDEN COUNTY AND STATEWIDE) A-2313-22 Appellate April 18, 2024
- IN THE MATTER OF TYRELL BAGBY, CAMDEN COUNTY POLICE DEPARTMENT (NEW JERSEY CIVIL SERVICE COMMISSION) A-2514-22 Appellate April 18, 2024
- HELEN CIGARROA VS. TOWN OF HARRISON, ET AL. (L-0905-19, HUDSON COUNTY AND STATEWIDE) A-3603-22 Appellate April 18, 2024
- EARNEKA WIGGINS, ET AL. VS. HACKENSACK MERIDIAN HEALTH, ET AL. (L-0005-23, UNION COUNTY AND STATEWIDE) A-3847-22 Appellate April 18, 2024 Summary A-3847-22 On leave granted, in this medical negligence matter, we consider whether N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, requires plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties. Plaintiffs rely on Buck v. Henry , 207 N.J. 377 (2011), in asserting they need only provide an AOM from a physician who specializes in either of the defendant doctor's specialties. The trial court agreed and denied defendants' motions to dismiss for failure to provide the proper AOM and for reconsideration. Defendant physician is board certified in internal medicine and gastroenterology. He certified that his care and treatment of plaintiffs' decedent involved both specialties. Plaintiffs only served an AOM from a physician board certified in internal medicine. In considering defendants' dismissal motions, the trial court cited to two sentences from Buck : "A physician may practice in more than one specialty, and the treatment involved may fall within that physician's multiple specialty areas. In that case, an [AOM] from a physician specializing in either area will suffice." Id. at 391. Because the facts presented here are distinguishable from Buck and the discrete ruling in Buck was not specific to this issue, and in considering the legislative purpose of the Act, and the principles of law espoused in the subsequent cases of Nicholas v. Mynster , 213 N.J. 463, 480-88 (2013), and Pfannenstein ex. rel. Estate of Pfannenstein v. Surrey , 475 N.J. Super. 83, 90-91 (App. Div.), certif. denied , 254 N.J. 517 (2023), we conclude plaintiffs must serve an AOM from a physician board certified in each of defendant doctor's specialties. We are also guided by the kind-for-kind, credential equivalency requirement articulated in N.J.S.A. 2A:53A-41(a). Therefore, we reverse the court's orders denying defendants' motions to dismiss for a deficient AOM and for reconsideration. However, because plaintiffs raised the issue of a waiver from the AOM requirement, and the issue was fully briefed and discussed during oral argument before the trial court, we remand for the court to determine the waiver argument on its merits. Close
- JILL DEVITO, ET AL. VS. 151 ROUTE 72, LLC, ET AL. (L-0406-21, OCEAN COUNTY AND STATEWIDE) A-1084-23 Appellate April 18, 2024