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Calbi v. Moss & Geuder Surgical Group

January 30, 2009

CHRISTOPHER CALBI, INDIVIDUALLY AND AS GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MATTHEW CALBI, DECEASED, PLAINTIFF-APPELLANT,
v.
THE MOSS & GEUDER SURGICAL GROUP, P.A., AND PASCACK VALLEY HOSPITAL, DEFENDANTS, AND KENNETH CARTAXO, M.D., PASCACK EMERGENCY SERVICES, P.A. AND ROXANA KLINE, M.D., DEFENDANTS-THIRD PARTY PLAINTIFFS-RESPONDENTS, AND STEVEN SCHREIBER, M.D., DEFENDANT-THIRD PARTY PLAINTIFF,
v.
LINDA CALBI, THIRD PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4963-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2009

Before Judges Cuff, Fisher and Baxter.

In this action, plaintiff alleged that the medical defendants negligently treated his son, Matthew Calbi, who died at Pascack Valley Hospital on August 17, 2003. After two years of litigation, defendants were granted leave to file a third-party complaint against Linda Calbi, Matthew's mother, who allegedly kicked Matthew in the neck, causing the injuries for which he required treatment.*fn1 We granted leave to appeal to consider whether the trial judge abused his discretion in denying plaintiff's motion to sever the medical malpractice claim from defendants' third-party action against Linda Calbi for indemnification.

In arguing that these two claims should not be resolved by way of a single trial, plaintiff first asserts that the trial judge should not have granted defendants leave to file the third-party action because the application came so late in the proceedings and because the indemnification claim lacked a sufficient relationship with the medical malpractice claim. We reject these arguments not only because our grant of leave to appeal was limited to the severance issue,*fn2 but also because there was no prejudice or harm generated by permitting the assertion of the claim in this single suit.

The only harm potentially caused by a single trial in this case emanates from the possibility of prejudice or jury confusion. The trial judge rejected plaintiff's arguments in this regard; our grant of leave to appeal was limited to a consideration of that determination.

To fairly consider the difficulties presented by one trial encompassing both the malpractice claims and defendants' claims against decedent's mother, the nature of the latter must be understood. Asserting alternatively that Linda Calbi's alleged kicking of her son was either intentional or negligent, defendants' third-party complaint demanded contribution, based upon both the New Jersey Joint Tortfeasors Act, N.J.S.A. 2A:15-5.1 to -5.8, and the New Jersey Comparative Negligence Act, N.J.S.A. 2A:53A-1 to -29, and common law indemnification.

Assuming for present purposes the truth of defendants' factual allegations -- that the fourteen-year old Matthew arrived at the emergency room with injuries sustained as a result of being kicked in the neck by his mother -- defendants and Linda Calbi cannot be deemed joint tortfeasors and the legislation regarding the rights of joint tortfeasors has no application here. See, e.g., New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 185 (App. Div. 1987). Their alleged torts were separate in nature and time, and the policy interest in distributing liability for the plaintiff's loss among joint tortfeasors, as revealed by the legislation cited, is not implicated. See, e.g., Cherry Hill Manor Assoc. v. Faugno, 182 N.J. 64, 75 (2001); Brodsky v. Grinnell Haulers Inc., 181 N.J. 102, 114 (2004).

However, where successive torts are alleged, the initial tortfeasor is "potentially liable for all the natural and proximate injuries that flow from the initial tort, including the consequences of medical treatment caused by his [or her] wrong." Ciluffo v. Middlesex Gen. Hosp., 146 N.J. Super. 476, 483 (App. Div. 1977). In addition, each successive tortfeasor obtains the right to a credit from the other to the extent necessary to "avoid duplicating compensation to the plaintiff." Daily v. Somberg, 28 N.J. 372, 386 (1958).*fn3 Accordingly, although defendants did not have a right to contribution, because they and Linda Calbi cannot be considered joint tortfeasors, defendants are entitled -- as alleged successive tortfeasors -- to pursue a claim for indemnification from Linda Calbi.

Plaintiff does not question defendants' right to maintain an action for indemnification against Linda Calbi. Instead, he argues that the claim should not have been included in this civil action or, if properly permitted, should be severed and tried separately. As we have already indicated, we did not grant leave to appeal the order that permitted the third-party action against Linda Calbi and need not comment further on the judge's exercise of discretion in that regard. We permitted this interlocutory appeal only to consider whether the trial judge erred in refusing to sever the claims. Now that the matter has been fully briefed, we conclude that the problems, which plaintiff contends would result from a single trial of all claims, have not yet ripened. As a result, we find no error in the trial judge's refusal to sever the claims at this time. Our view is shaped by the current status of defendants' claim for indemnification.

The record on appeal indicates that, in April 2006, Linda Calbi pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), in connection with her infliction of the injuries that ultimately resulted in Matthew's death. She filed a pro se answer to the third-party complaint, but refused to answer questions about the occurrence at her deposition in this matter on April 16, 2008.

In considering the impact of Linda Calbi's refusal to speak about the incident, we recognize that the invocation of the privilege against self-incrimination during a civil proceeding often causes considerable difficulties. In Mahne v. Mahne, 66 N.J. 53, 58 (1974), the Court recognized that "[i]n civil proceedings the courts have, in the interests of truth and justice, displayed understandable readiness to impose non-criminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege." See also Woodward-Clyde Consultants v. Chem. & Pollution Sciences, Inc., 105 N.J. 464, 475 (1987); Costanza v. Costanza, 66 N.J. 63, 67-68 (1974); Innes v. Carrascosa, 391 N.J. Super. 453, 499 (App. Div.), certif. denied, 192 N.J. 73 (2007).

In Mahne, the Court established that a plaintiff who invokes the right against self-incrimination to avoid pretrial discovery may face dismissal, but that a different approach is often required when a defendant invokes the same right because, ...


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