Shawn Labega v. Hetal C. Joshi, M.D. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3208-22
SHAWN LABEGA,
Plaintiff-Respondent,
v.
HETAL C. JOSHI, M.D.,
JONATHAN BORJA, PA-C, and
TEAMHEALTH HOLDINGS, INC.
a/k/a TEAMHEALTH,
Defendants-Respondents,
and
MARY V. WHITECAVAGE, R.N.,
COLLEEN T. MURPHY, R.N.,
CAROLYN HUDAK, R.N., JFK
MEDICAL CENTER, and
HACKENSACK MERIDIAN
HEALTH,
Defendants,
and
MIDDLESEX EMERGENCY
PHYSICIANS, PA,
Defendant-Appellant.
_____________________________
Argued January 18, 2024 – Decided February 1, 2024
Before Judges Accurso and Gummer.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Docket No. L-3088-18.
Ryan Alan Notarangelo argued the cause for appellant
North Jersey Emergency Physicians PA, d/b/a
Middlesex Emergency Physicians, PA (Dughi, Hewit &
Domalewski, attorneys; Mark Alan Petraske, of
counsel; Ryan Alan Notarangelo, on the briefs).
Bruce H. Nagel argued the cause for respondent Shawn
Labega (Nagel Rice, LLP, attorneys; Bruce H. Nagel
and Robert H. Solomon, of counsel and on the brief).
Kenneth M. Brown argued the cause for respondent
Hetal C. Joshi, M.D. (Weber Gallagher Simpson
Stapleton Fires & Newby LLP, attorneys, join in the
brief of appellant North Jersey Emergency Physicians
PA).
Jay Judah Blumberg argued the cause for respondent
Jonathan Borja, PA-C (Blumberg & Wolk LLC,
attorneys, join in the brief of appellant North Jersey
Emergency Physicians, PA, and amicus curiae New
Jersey Hospital Association).
James J. DiGiulio argued the cause for amicus curiae
New Jersey Hospital Association (O'Toole Scrivo,
LLC, attorneys; James J. DiGiulio, of counsel and on
the brief; Antonio A. Vayas, on the brief).
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Anthony Cocca argued the cause for amicus curiae New
Jersey Defense Association (Cocca & Cutinello, LLP,
attorneys; Anthony Cocca and Katelyn E. Cutinello, of
counsel and on the brief).
PER CURIAM
On the first day of jury selection in this medical-negligence case,
plaintiff's counsel made an oral application to bar defendant Middlesex
Emergency Physicians from participating in the trial, arguing its only exposure
was vicarious based on the alleged negligence of its employee, defendant
Jonathan Borja, who had his own counsel at trial. The trial court agreed with
plaintiff's counsel that he shouldn't be "double teamed" and severed plaintiff's
claim against Middlesex. We granted Middlesex's motion for leave to appeal,
staying the trial, and now reverse. Plaintiff is, of course, free to dismiss his
claim against Middlesex if he doesn't want separate lawyers for Borja and
Middlesex arrayed against him at trial. He may not, however, both maintain his
claim against Middlesex and prevent it from defending itself and its employee,
as doing so would deprive Middlesex of its constitutional right to a jury trial.
Springing the motion on Middlesex on the first day of trial deprived it of due
process.
Plaintiff sued Middlesex, along with other individuals and entities,
alleging Middlesex was "a licensed emergency medical practice" that was
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vicariously liable for the negligent acts or omissions of its agents and
employees, specifically referencing defendant Borja. Plaintiff seeks a judgment
against Middlesex "for damages, interest and costs of suit." Middlesex
participated in discovery, motion practice, and a prior interlocutory appeal in
this case. Before trial, plaintiff did not move to sever its claims against
Middlesex or otherwise seek to prevent Middlesex from participating in the trial.
On the first day of trial, plaintiff's counsel made an oral application to bar
Middlesex and its counsel from participating in the trial. Contending
Middlesex's "role [was] solely vicarious liability," plaintiff's counsel argued,
without citing any supporting law, that permitting Middlesex and its counsel to
participate in the trial would be "gilding the lily" and "overloading the defense"
because Borja was represented by a different lawyer and "because there is no
sense in defending [Borja]. What [Middlesex's attorney] is trying to do is he's
really defending the coverage issue."
After hearing argument, the trial judge initially decided he was
"dismissing as against them, Middlesex . . . , because I don't think they have
anything to do with this case. And down the road, when and to what extent you
have any indemnification issue with them, fine." Plaintiff's counsel complained:
I don't want a dismissal. I want the party to remain. I
just don't want another counsel doing double work. So
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if Your Honor is going to dismiss them, . . . I absolutely
can't have that, because they will then argue, if I get a
verdict, I have no right against them because they were
dismissed.
....
I'm not asking for a dismissal. I'm asking that they be
severed out so that we can collect against them down
the road. So they're not here, but that piece is severed
out. That’s what I’m asking for.
The judge responded, "I think you finally hit the right word. Severed. It's
severed. This way he's got his case, but your claim survives," and held,
"Middlesex . . . is severed from this matter for purposes of this trial." The court
clerk questioned what the judge meant by severed, and the judge explained,
"That's the whole thing. Just severed. It's severed."
The judge subsequently entered an order directing that "[a]ll claims
against defendant Middlesex . . . be and are hereby severed from trial." The
judge did not refer in the order or on the record to any future trial of the severed
claims against Middlesex. We granted Middlesex leave to appeal the order and
stayed the trial pending our disposition of that appeal. We now reverse and
vacate the order.
The right to a trial by jury goes back to the very founding of our nation.
In the Declaration of Independence, Thomas Jefferson enumerated the reasons
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why the States sought their independence from Great Britain and its king,
including that Americans had been deprived "of the benefit of Trial by Jury."
The Declaration of Independence para. 20 (U.S. 1776). The Seventh
Amendment to the United States Constitution "preserved" the "right to trial by
jury" in "Suits at common law." U.S. Const. amend. VII. "The founders of our
Nation considered the right of trial by jury in civil cases an important bulwark
against tyranny and corruption, a safeguard too precious to be left to the whim
of the sovereign, or, it might be added, to that of the judiciary." Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J., dissenting).
And it goes back to the founding of our state. New Jersey's Constitution
of 1776 provided: "the inestimable Right of Trial by Jury shall remain
confirmed, as a Part of the Law of this Colony without Repeal for ever." N.J.
Const. of 1776 art. XXII. New Jersey's Constitution of 1844 reaffirmed that
core principle, stating "[t]he right of trial by jury shall remain inviolate . . . ."
N.J. Const. of 1844 art. I, ¶ 7. The same language appears in our 1947
Constitution. See N.J. Const., art. I, ¶ 9.
The order at issue purports to "sever[]" the claims against Middlesex from
the trial, but what it really and clearly is doing is depriving Middlesex of its
constitutional right to a jury trial. A trial judge may sever claims "for the
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convenience of the parties or to avoid prejudice," R. 4:38-2(a), and may direct
that "the issues of liability and damages be separately tried" if a trial as to all
issues would be "complex and confusing" and separate trials would result in "a
substantial saving of time," R. 4:38-2(b). See Lanzo v. Cyprus Amax Minerals
Co., 467 N.J. Super. 476, 529 (App. Div. 2021) (describing the balancing
analysis courts use to decide severance motions); Tobias v. Cooper Med. Ctr.,
136 N.J. 335, 345 (1994) (describing the bases for separate trials). In an abuse
of discretion, the trial judge made no such findings before issuing the severance
order. The judge's failure to make those findings and to provide for any future
trial of the claims against Middlesex in either the order or his decision on the
record along with plaintiff's counsel's stated intention — "I'm asking that
[Middlesex] be severed out so that we can collect against them down the road"
— leave no doubt as to the effect of the order: the case would be tried and a
verdict on liability and damages would be reached without the participation of
one of the named defendants. That's an untenable deprivation of a fundamental
constitutional right.1
1
Plaintiff's reliance on Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super.
129, 146 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996), is misplaced. At
issue in Kane was whether the trial court had erred by allowing a third-party
defendant, which had not been named by the plaintiff as a defendant, to
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And the manner in which plaintiff's application was made and decided
deprived Middlesex of its due-process rights. "Fundamentally, due process
requires an opportunity to be heard at a meaningful time and in a meaningful
manner." Doe v. Poritz, 142 N.J. 1, 106 (1995). "The minimum requirements
of due process, therefore, are notice and the opportunity to be heard." Ibid.;
see also Thomas Makuch, LLC v. Twp. of Jackson, 476 N.J. Super. 169, 187
(App. Div. 2023). Plaintiff gave Middlesex no notice of his application and
thereby deprived Middlesex of any opportunity to prepare its opposition and
present a meaningful response. That procedure does not comport with any
concept of due process.
Characterizing plaintiff's application as a motion in limine does not excuse
the flawed procedure followed here. Even a motion in limine requires notice.
See R. 4:25-7(b); Pretrial Information Exchange, Pressler & Verniero, Current
N.J. Court Rules, App. XXIII to R. 4:25-7(b), ¶ 4, www.gannlaw.com (2024).
Moreover, plaintiff's application was not a straightforward motion to exclude a
piece of evidence or a party's presentation of a witness. With no advance notice,
participate in the trial of the plaintiff's claims against the named defendants
instead of severing the trial of the third-party claim against that third-party
defendant. Ibid. Middlesex is a defendant, not a third-party defendant, and,
thus, has a constitutional right to participate in the trial of plaintiff's claims.
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plaintiff sought on the first day of trial to prevent Middlesex from participating
in the trial, thereby excluding entirely the presentation of its case, while keeping
it on the hook for any subsequent damage award. No precedent supports
granting that application because it simply isn't fair. See Seoung Ouk Cho v.
Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 473 (App. Div. 2015) ("our
primary goal . . . is to adjudicate cases fairly and impartially" (quoting Klier v.
Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83 (App. Div. 2001))).
Reversed, vacated, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
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