Flood .v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013). On June 4, in Koseoglu v. Wry, 431 N.J. Super. 140 (App. Div. 2013), a panel consisting of Judges Messano, Lihotz and Kennedy, in an opinion by Judge Lihotz, discussed here, raised questions about Model Jury Charge (Civil) 5.50E, “Pre-Existing Condition- Increased Risk/Loss- Proximate Cause.” The panel said that the interrogatories that accompanied the Model Charge “seem problematic and likely to misdirect the jury,” though the interrogatories were not directly at issue in that case. Today, the same panel, with Judge Messano writing the opinion, focused again on that same jury charge and interrogatories, and reached a result that was foreshadowed by Judge Lihotz’s decision in Koseoglu.
The key issues in this latest appeal, a medical malpractice case, was whether the Law Division had erred by deviating from the Model Interrogatories that accompanied the Model Jury Charge in question. Judge Messano concluded that there was no error.
In fact, after reviewing at length the history of the issue of proximate causation and increased risk cases, beginning with Evers v. Dollinger, 95 N.J. 399 (1984), and tracing the evolution of the Model Jury Charge, Judge Messano concluded that “the Model Charge jury interrogatories are erroneous. As written, the interrogatories potentially relieve the plaintiff of his/her burden of proving both parts of the lessened proximate cause standard applicable to these types of medical malpractice lawsuits. And, as written, the jury interrogatories combine for the jury’s determination in a single question two separate issues, one, for which the plaintiff bears the initial burden of proof– proximate cause– and, a second, for which the defendant bears the burden of proof, but only after plaintiff has succeeded– apportionment of damages.” The interrogatories employed in the case before the panel were correct in deviating from the “erroneous” Model Interrogatories, and the interrogatories used conformed to the Supreme Court’s caselaw that Judge Messano painstakingly detailed. The panel urged that the Committee on Model Civil Jury Charges revisit the issue, and stated that, pending such a review, “specifically disapprove[d] of the continued use of the model interrogatories as currently written.”
Notably, the panel observed that the Supreme Court does not sanction or approve Model Civil Jury Charges. Unlike other Supreme Court committees, the Committee on Model Civil Jury Charges does not file reports with the Court. Instead, the Court comments, approves or disapproves Model Civil Jury Charges only when a particular Model Charge comes before the Court in a particular case. There was no evidence that the Supreme Court had approved this particular Model Charge or its accompanying interrogatories, so the panel was free to decide that the Model Interrogatories were improper because they failed to conform with Supreme Court precedents in this area.