Moraes v. Wesler, 439 N.J. Super. 375 (App. Div. 2015). Plaintiff was injured in a car accident in November 2011, for which she filed suit in 2012. Then, in 2013, she was in another auto accident in which she again sustained injuries, including aggravation of the injuries from the first accident. She filed suit in that case in January 2014 and then sought to consolidate the two cases. That motion was unopposed. The Law Division judge who heard the motion acknowledged that there were “common issues of injury.” Despite that, the court denied consolidation and then denied a motion for reconsideration on a record that included expert medical evidence. Plaintiff sought leave to appeal, which the Appellate Division granted. Today, in an opinion by Judge Nugent, the Appellate Division reversed and ordered that the two cases be consolidated.
Consolidation is governed by Rule 4:38-1, which states that “When actions involving a common question of law or fact arising out of the same transaction or series of transactions are pending in the Superior Court, the court on a party’s or its own motion may order the actions consolidated.” The decision whether to consolidate is within the discretion of the trial level judge, as Judge Nugent observed, so the abuse of discretion standard applied on this appeal. One of the definitions of “abuse of discretion” is the failure to consider “all relevant factors.” Judge Nugent concluded that the Law Division had abused its discretion in declining to consolidate the two cases.
“The damage issues in plaintiff’s actions involve common questions of law and fact, a proposition that the trial court acknowledged. In fact, absent consolidation, the two juries could reach inconsistent verdicts if the jury in the first action attributes plaintiff’s continuing symptoms to the injuries she sustained in the second accident, and the jury in the second action attributes plaintiff’s continuing symptoms to permanent injuries she sustained in the first accident.” Since the Law Division apparently overlooked the risk of inconsistent jury verdicts, its decision “was not premised upon consideration of all relevant factors” and thus constituted an abuse of discretion.
There are very few appellate decisions that address how consolidation issues should be handled, since trial level rulings on that subject are fact-intensive and, as Judge Nugent stated, generally discretionary. Going forward, this short opinion is likely to be cited frequently in the context of motions to consolidate.