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Personal Injury Lawsuit Reinstated

April 3, 2015 | Posted In Personal Injury/Negligence

The New Jersey Appeals Court recently determined that the negligence of a personal injury plaintiff’s attorney should result in the case’s reinstatement, with new counsel for the victim. In Domena v. New Jersey Re-Insurance Co, the appellate division found that “alleged attorney negligence is the sole cause of the dismissal of plaintiff’s complaint,” and that the “motion judge abused his discretion by imposing the former attorney’s failure…onto [the] plaintiff.”

Lack of Expert Testimony

In 2008, Marilyn Domena was rear-ended at a stoplight. Following the accident, she sued her auto insurance carrier, New Jersey Re-Insurance Co., for underinsured motorist coverage.

The collision caused a great deal of suffering for Domena, as her knee, jaw and hearing were aggravated as a result. She also suffered several new injuries, some of which her new attorney alleges are permanent, and she is in a wheelchair.

At the original trial, Domena’s first attorney failed to prove that her injuries were permanent. Typically, this is done with an expert medical professional who testifies in court regarding the extent of the victim’s injuries and the potential for either full or partial recovery. This testimony is critical for the plaintiff’s argument, and provides groundwork for any damages the plaintiff is seeking.

New Jersey Re-Insurance Co sought summary judgment because of the lack of expert reports, and the motion was granted by the Passaic County Superior Court Judge. The official ruling stated that Domena failed to meet the verbal threshold statute’s requirements because she did not provide expert testimony to confirm her injuries were permanent.

Attorney Negligence

A personal injury attorney owes his or her client a duty to provide the best possible representation and utilize every available piece of evidence to make a strong case. In some cases, like Domena’s, when the attorney fails to provide an adequate level of representation, the case could be dismissed or reinstated, depending on the course the client takes. A negligent attorney does not have to cost the plaintiff his or her case, but can give the plaintiff the means to appeal a dismissal and refile a lawsuit.

The Appellate Court stated that the plaintiff should not be made to suffer negative consequences because her attorney made a mistake. The judges referred to a 1985 case, Jannson v. Fairleigh Dickinson University, in which a dismissal was vacated because the attorney failed to adequately represent the client.

Jannson lays out four factors that should be used to determine how to handle attorney missteps: extent of delay between dismissal and motion to vacate, the underlying cause, the prejudice to the opposition, and the level of blame assigned to the plaintiff.

At Helmer, Conley, and Kasselman, PA, our New Jersey personal injury attorneys represent victims of car accidents and collisions who have been negatively impacted by another person’s negligence, whether it is the negligence of the other driver or the negligence of an attorney who first handled their cases. To discuss your case and your options to move forward, contact an HCK attorney for a consultation today.


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