On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Ard, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
This matter comes to us on our grant to defendant*fn1 of leave to appeal a decision by the trial court setting aside a settlement of $25,000 in this medical malpractice suit.
The matter had gone the route of our R. 4:21 practice. The panel unanimously found for defendant. A trial resulted in a jury disagreement. On the date of the second trial, after the case had been assigned to a judge but before a jury had been selected, counsel for the parties reached a settlement of $25,000, acceptable to the parties. Counsel so advised the trial judge and the case was marked "settled" by the clerk. As part of the settlement it was understood that defendant was not admitting
fault and that a settlement agreement to be drawn by defense counsel would reflect this condition. The agreement was not put on the record.
The oral agreement of settlement was made on September 13, 1982 and defendants' counsel prepared the closing papers which plaintiffs' attorney received on September 15, 1982. In the interim plaintiffs returned to their home and had a change of mind. On the morning of September 16 plaintiff Susan Pascarella telephoned her attorney and refused to go through with the settlement. It is to be noted that at this time she had not seen the settlement agreement. She told her counsel that the settlement had been made while she was emotionally pressed.
Susan Pascarella's affidavit, filed in support of her motion to vacate the settlement, reflected the following:
(1) Prior to the day of trial and settlement (we are not told precisely when) her mother had died and plaintiff was "greatly preoccupied with trying to get her affairs in order while at the same time suffering from bronchitis, which has been affecting me ever since my vocal chord was paralyzed [apparently referring to the operation by defendant five years prior to September 13, 1982]"; (2) "[b]ecause of the situation, I now feel I was quite vulnerable to suggestions, propositions, and terms . . . and did not properly reflect upon the situation" [emphasis supplied]; (3) "[a]lthough I do not mean to indicate that anyone forced their will upon me, I felt pressured to make a quick decision so that the proceeding would not be held up"; (4) she did not know why she had indicated that the settlement was acceptable, and (5) on arrival home she had been "quite confused" and had determined that she could not "in good conscience" accept "the proposals" and had so advised her attorney.
Her husband Alfred Pascarella's affidavit focused upon his disagreement with the later written settlement agreement. He stated that he was "greatly offended by the language which [he] believed to be a vindication of Dr. Bruck." Lastly, he concluded
that he believed his wife and he had "made a hasty decision" without ...