February 25, 2015

A trial judge who declined to consolidate lawsuits filed by a woman involved in two separate car accidents in close succession abused his discretion, a New Jersey appeals court has ruled.

The trial judge “denied plaintiff’s consolidation motion on a record that disclosed no significant or complex liability issue in either action, overlooked that trying the actions separately could result in inconsistent verdicts, and provided no appropriate explanation for its decision,” Appellate Division Judge William Nugent said in Moraes v. Wesler, a published decision.

According to the opinion, Telma Moraes was involved in two crashes in less than three years. The first occurred in November 2011, when another motorist crossed the center line and struck her vehicle. Moraes claimed she suffered bulging discs and a herniation at the cervical level, a bulging lumbar disc, and a knee injury.

Moraes filed suit a year later and, while that was pending, was involved in a second accident when she was rear-ended in September 2013. She allegedly sustained additional disc bulges and herniations at the cervical and lumbar levels, as well as aggravation of the prior injuries, the opinion said.

In January 2014, Moraes filed the second lawsuit, and shortly after made a motion to consolidate the two, which apparently went unopposed. Essex County Superior Court Judge Michael Nelson denied the motion, noting the “‘lack of closeness in time’” between the two accidents and the potential for confusion, according to the opinion.

Moraes obtained a medical report attributing her injuries to both accidents, while a defense expert obtained by the motorist in the first accident opined that the second crash was mostly to blame, the opinion said.

Armed with these reports linking the two crashes, Moraes moved for reconsideration of the consolidation motion, but the judge denied it without explanation.

The Appellate Division granted Moraes’ motion for leave to appeal.

The defendants again took no position on consolidating the two cases, and filed no briefs.

Nugent, joined by Appellate Division Judges Clarkson Fisher Jr. and Allison Accurso, noted that consolidation is discretionary under Rule 4:38-1, but the panel was “constrained to conclude that the trial court abused its discretion.”

The court noted that Nelson acknowledged that there were common fact and legal issues.

“In fact, absent consolidation, two juries could reach inconsistent verdicts” if each blames Moraes’ injuries on the other accident, Nugent said.

“To the extent the court was concerned that the liability issues would somehow confuse the jury if tried together, there was no rational explanation for that concern,” Nugent said.

Also, the “liability of the respective defendants appears to be rather straightforward,” the court said, noting that the motorist in the first accident admitted in an interrogatory to crossing the center line, while the second accident involved a rear-end hit.

“Of course, the trial court did not have the benefit of depositions or other discovery concerning liability when it made its ruling,” Nugent said. “Nevertheless, on the record before it, it appeared that both defendants were negligent and plaintiff was not.”

Moraes’ lawyer, John Gregorek of Blume Donnelly Fried Forte Zerres & Molinari in Chatham, New Jersey, called the decision “useful ... because it’ll show that certainly a three-year gap is not beyond something that jurors can consider.”

He added that there’s little case law on proximity of multiple accidents as a factor for or against consolidation.

“This issue is likely to pop up from time to time,” Gregorek said.