Blog

Tips from the Masters: Direct Examination

The Massachusetts Academy of Trial Lawyers recently asked Liz Mulvey to contribute to its Tips from The Masters series.  Liz penned the following suggestions, which were published in a supplement to Massachusetts Lawyers Weekly on February 8, 2016:

Let’s face it. Direct examinations aren’t glamorous.  Perry Mason never won a case on direct examination.  Television news generally doesn’t showcase direct examinations.  And jurors don’t look up and lean forward in their seats when a lawyer stands up to do a direct exam.

And as a result, many lawyers make the mistake of viewing direct examinations as boring and unimportant. After all, they know exactly what (they hope) the witness will say, the exam can be scripted and rehearsed before trial ad nauseam, and the sense of confrontation, surprise and drama that accompanies a cross-examination just isn’t there.  And too often, the lawyer’s attitude that direct examination is a just a formality to be endured, a box to be checked, is both obvious and contagious to the jury.

We’re all taught that trials are stories, and lawyers are story tellers. But truly, the witnesses who testify on direct exam are the principal story tellers—or at least they should be. Lawyers do enough talking, and jurors do enough listening to lawyers.  There is no reason to pass up an opportunity to allow a witness to participate in telling the story. 

Good direct examination involves three steps: 1) figure out what the jurors want to know; 2) listen to the witness; and 3) more witness, less lawyer.

In a good direct examination, the lawyer stands in the jurors’ shoes, asking the questions that the jurors want answered. Sometimes those questions elicit the pertinent facts, but just as often, the answers to direct questions may show the jurors that something isn’t important, or needn’t be considered.  Often, the lawyer may know that an issue is irrelevant, or that there is a reason for a gap in the evidence—but the jurors won’t know unless some witness tells them.  Showing the jury why something doesn’t matter, or why a piece of evidence isn’t available, can eliminate unnecessary confusion and unanswered questions that could sidetrack the deliberaitons.  Once I’ve had the witness tell the story, I usually address issues raised by the defense, to allow the witness to give the answers to questions that are probably on the jurors’ minds.  Allowing the witness to answer a direct question without interruption is usually much more effective than hoping the witness can explain under cross examination.

It’s easy to assume that a witness on direct examination has given the same answer he gave in a deposition or conference room, and that the jury understands the answer. But that’s not necessarily true.  Unless the lawyer is listening carefully to the answers, and watching the jury, it’s impossible to know if the testimony is clear, correct and comprehensible.  This means looking up from the legal pad and really thinking about the answers coming from the witness, asking questions to clarify an answer where necessary, and being quick to follow up an unexpected response.

Finally, it’s important to remember that the witness should be the star on direct exams. The lawyer’s questions should be short and easy to understand.  There’s nothing wrong and everything right about questions like “What happened next,” “Describe what you saw,” “Who was there?” or my all-time favorite, “Why?”  The lawyer’s role is not to testify, or even to suggest answers, but simply to prompt the witness to tell the story.  The witness’s words may not be perfect, but they’re likely to be much more persuasive than the lawyer’s.

More than once, I’ve had a judge look quizzically at me as I quietly allow a defense lawyer to lead a witness through a “direct” exam full of leading questions where the lawyer does much more testifying than the witness. The truth is I would much prefer to have the jurors listening to a lawyer drone on than risk that they might be persuaded by an interesting, articulate and credible witness.
 


A New Direction for Recreational Use Statute?

A recent Appeals Court decision suggests that the court may be taking a closer look at the Massachusetts Recreational Use State, G.L. c.21, section 17C.  The statute, which bars ordinary negligence claims against landowners who allow the public to use their property for recreational purposes “without imposing a charge or fee,” has in recent years been expanded far beyond what the legislature originally intended.

The court in Amaral v Seekonk Grand Prix Corp. rejected a claim by the operator of a go-kart facility that a mother who was injured while watching her sons ride could not recover after being struck by an errant go-kart.  The facility had raised the Recreational Use Statute as a defense, claiming that, since it permitted the mother to watch her sons without paying for the privilege, it was not liable for negligence.

At first blush, this defense seems patently absurd: how could a money-making operation possibly avoid liability to patrons injured through its negligence?  How could a statute which was intended to encourage landowners to allow the public to use open space for hiking, horseback riding and similar activities be used to protect a business? Yet, the go-kart operator was able to point to a line of decisions in which spectators at an event for which admission was not charged could not recover for negligence.  And the Superior Court judge who heard the motion for summary judgment agreed.

Fortunately, common sense prevailed in the Appeals Court.  The court reversed the grant of summary judgment, noting that the plaintiff had purchased admission tickets for her sons to ride the go-karts.  The court noted that “Grand Prix could fully anticipate that a parent accompanying minor children and paying a fee on their behalf would qualify as a paying customer under the statute.”  Because the plaintiff had paid a fee “for her particular use of the land,” her claim was not barred.

The decision still doesn’t go as far as many victims would hope–and there was a much easier way for the court to get there.  The statute does not require that the individual user pay a fee, but merely that the landowner allow recreational use by the public “without imposing a charge or fee.”  The plain language of the statute would seem to exempt commercial money-making endeavors from its scope.


Fairness for Third-Party Claimants

Worker’s compensation insurers cannot enforce their lien against third-party settlement proceeds that are allocated to a claimant’s pain and suffering damages, the Supreme Judicial Court recently ruled.  In DeCarlo v. Suffolk Construction Co., Inc., the Court held that the compensation carrier could recover amounts paid for medical bills and lost wages only from settlement proceeds attributable to those categories of damages.

The law in Massachusetts and most other states bars employees from suing their employers for injuries suffered in the workplace, instead limiting them to worker’s compensation benefits.  Those benefits, while usually paid immediately and for the duration of the disability, cover medical bills and part of the wage loss, but provide only limited compensation for loss of function and nothing at all for pain and suffering.  The employee may still bring negligence claims against other persons or entities, and may recover full tort damages.  If the employee recovers additional compensation, the worker’s compensation carrier has a right to be reimbursed for what it has paid.

For years, insurers have successfully insisted that their lien may be satisfied from the employee’s entire recovery, regardless of how it is allocated among the various elements of tort damages.  This process sometimes leaves the employee with little to no compensation for general damages such as pain and suffering, because the lien consumes a large portion of the settlement or judgment.

The plaintiff in DeCarlo argued that the insurer could recover its payments only from amounts allocated to medical bills and lost wages, and that lien could not reach that portion of the settlement attributable to his pain and suffering.  Relying on the language of the third-party recovery statute, G.L. c.152 s. 15, the Court agreed.  The Court noted that the statute specifically referred to an injury “for which compensation is payable…”  Since no compensation is payable for pain and suffering, the insurer could not enforce its lien against damages for that injury.  The result is  consistent with an earlier ruling of the Appeals Court in Hultin v. Francis Harvey & Sons, Inc., which recognized that the insurer could not enforce its lien against a spouse’s recovery for loss of consortium.

The Court noted that employees would not be able to “stack the deck” against the insurer by allocating all or even the lion’s share of a settlement to pain and suffering damages.  The allocation of a settlement is subject to approval by a superior court judge or the Department of Industrial Accidents, at a hearing at which the insurer has a right to be heard.  Plaintiffs and their lawyers should be prepared to justify the allocation of settlement proceeds to different categories.


Who Gets the Money in a Wrongful Death Case?

A recent decision from the United States District Court reaches the initially startling conclusion that the estate of a man injured by the negligence of another driver who also died in the crash could not attach monies received by the defendant’s daughter as compensation for his death.  It sounds incredibly confusing and completely illogical, but because of the way the Massachusetts wrongful death statute works, it’s exactly the right result.  Here’s why:

Amnon Bogomolsky was killed when the minivan he was driving was hit by a truck driven by Michael Furlong, who also died as a result of the collision.  The deadly crash took place near the approach to the Sagamore Bridge in Bourne.  A state police investigation of the crash concluded that several factors contributed to the collision, including Furlong’s excessive speed, the presence of cocaine and benzodiazepines in his system, and poor brakes on his truck.  The police also faulted an unknown vehicle that had merged onto Route 3 eastbound, possibly encroaching into Furlong’s lane, that caused Furlong to veer into Bogomolsky’s lane.

Bogomolsky’s estate sued Furlong’s estate, and sought an attachment of $100,000 in uninsured motorist proceeds that Commerce Insurance Company had agreed to pay to Furlong’s estate in settlement of the uninsured motorist claim–resulting from the negligence of the driver of the unidentified third car.  The court in Bogomolsky v. Furlong denied the attachment, properly ruling that, under Massachusetts law, the proceeds of the wrongful death claim belonged not to Furlong’s estate, but to Furlong’s daughter, who was the beneficiary under the wrongful death statute.  It sounds strange, but the court got it exactly right.

One of the interesting features of the Massachusetts wrongful death statute, G.L. c.229, ss. 1 and 2,  is that the personal representative of the estate has the authority to bring a wrongful death case, but that any recovery is distributed to the so-called statutory beneficiaries–the heirs at law.  The damage recovery never becomes an asset of the decedent’s estate, but instead is held by the personal representative in trust, with the obligation to distributed it directly to the beneficiaries.

What that means in the Bogomolsky case is that the $100,000 uninsurance proceeds, which were being paid on account of a claim by Furlong’s estate against the unidentified driver, never became a part of the estate, but instead, would go directly to Furlong’s daughter, the statutory beneficiary.  Since the proceeds were not an asset of Furlong or his estate, they were not subject to attachment by Bogomolsky’s estate.  In contrast, if Furlong had a bank account or a house in his name at the time of his death, those would be assets that the plaintiff could attach as security for a personal injury judgment.

This principle has important consequences that I’ll discuss in the next post.

Read the opinion in Bogomolsky v. Furlong here.


No Means No

A lawyer who once rejected a medical malpractice insurer’s offer of settlement could not later accept the offer, the Massachusetts Appeals Court has ruled in an unpublished opinion.  The court in Muise v. Verhave held that the lawyer’s rejection of an offer to settle the case for $1,000,000, particularly in light of subsequent negotiations for different amounts, precluded a later attempt to “accept” the rejected offer.

Muise involved a medical malpractice trial that occurred in April 2012.  During the trial, the plaintiff’s lawyer and the defendant’s insurer had multiple settlement discussions, involving both a possible “high-low” agreement–an agreement which capped the maximum recovery, while providing a minimum payment even if there was a defense verdict–and an outright settlement of all claims for an immediate cash payment.  These discussions culminated in the execution of a written high-low agreement while the jury was deliberating, providing that the plaintiff would receive a maximum payment of $4.5 million, and a minimum of $500,000.

The following day, with the jury still out, the plaintiff’s lawyer approached the insurance adjuster and told her that he was now going to “accept” the offer of $1,000,000 to settle the case which had been made before the high-low agreement was signed.  The adjuster responded that the offer had already been rejected, and was no longer available.  After the jury returned a verdict for the doctor, the insurer paid $500,000 in accordance with the high-low agreement, and the plaintiff sued to “enforce” the settlement agreement, seeking an additional $500,000 payment.

The Appeals Court held that the plaintiff was bound by the signed high-low agreement, and that her recovery was therefore limited to the $500,000 already paid.  Reviewing the “elementary” law of offer and acceptance, the court noted that a counteroffer–here the plaintiff’s counsel’s statement that it would take “more than a million” to settle the case–was equivalent to a rejection, and that after such a rejection, the plaintiff no longer had any power to accept the original offer.

As a matter of basic contract law, the Appeals Court clearly got it right.  But the case stands as an important reminder to lawyers that the act of asking for more than an offer in essence rejects the offer.  In many cases, if the new demand is rejected by the insurer, the plaintiff may still be able to settle for the original offer amount–but that depends on the insurer’s continued willingness to settle at that figure, and not to any legal right.  The situation in this case was aggravated by the fact that the plaintiff’s counsel had entered into the written high-low agreement after “rejecting” the outright settlement, and thus the insurer had little incentive to revive the rejected offer.


A Good Day for Common Sense

In a decision that makes perfect sense to anyone practicing in the area, the Supreme Judicial Court yesterday refused to use a technicality to bar a wrongful death claim against the state. In Gavin v. Tewksbury State Hospital, the Court held that a presentment otherwise properly made under G.L. c.258 s.4 was not defective because it was made in the name of an estate, rather than the personal representatives of the estate.

The SJC’s decision reversed a contrary result from the Appeals Court, vacated the Superior Court decision granting summary judgment, and sent the case back to the Superior Court, where presumably, the plaintiffs will be able to have their claim heard.

As I wrote at the time, the Appeals Court’s decision in Gavin, holding that G.L. c.258 s.4 required presentment of a wrongful death claim to be made by a properly appointed personal representative, was a real trap even for experienced lawyers.  It has long been the rule that the appointment of an executor or administrator that occurs after the filing of a wrongful death suit relates back to the date of filing.  Thus, even if a complaint is filed before the formal appointment, as long as the appointment is properly made eventually, there is no problem.

Oddly enough, the trap was most dangerous for lawyers who were familiar with the applicability of the relation back principle, as they would be most likely to assume that the same rule would apply to the presentment.  After all, who would think that you could file a complaint without a formal appointment, but not make a presentment?

A well-reasoned dissent, authored by Appeals Court Justice Peter Agnes Jr., made all these points and more.  So long as the Commonwealth has all of the information regarding the claim–including, in the Gavin case, the identity of the beneficiaries of the estate–the statutory purposes of C.L. c.258 were satisfied.  To require a formal appointment would add nothing to the process.

And the Supreme Judicial Court agreed.  Rejecting the Commonwealth’s position that the word “claimant” in Chapter 258 should be interpreted to mean only that person with the legal authority to file suit, the Court determined that a more general definition was appropriate.  Further, the Court noted, should the Commonwealth desire to settle a claim, it could easily demand proof of a formal appointment to insure that it was not paying an unauthorized recipient.

The result brings the law of presentment into line with the law relating to after-appointed personal representatives in wrongful death claims–and now mirrors the law for claims brought under the Federal Tort Claims Act.  It’s probably still good practice to get the personal representative appointed as soon as practicable, but the failure to do so shouldn’t be fatal.


Insurers Behaving Badly

A Superior Court judge last week made quite a statement about his disgust for the claims handling tactics of AIG’s subsidiaries, slamming the insurance giant with treble damages for its prolonged crusade to avoid paying damages to a lawyer who suffered severe injuries when he was struck by a Partners Health Care bus

Local lawyer Odin Anderson was crossing Staniford Street in Boston on September 2, 1998, when he was struck by a Partners shuttle bus, which was making a left turn from Cardinal O’Connor Way onto Staniford Street. Although Anderson was returning from an extended lunch, which involved alcohol consumption, the sole independent witness described him as walking “briskly” and “with no apparent difficulty.”   Anderson was severely injured, and eventually brought suit against Partners.  The case was tried in June 2003, and Anderson and his family were awarded more than $2.2 million in damages.

Immediately after the accident, the Partners’ insurer, and AIG subsidiary, began an investigation, which included interviewing Norman Rice, the shuttle bus driver.  Rice’s original statement said that he had not seen Anderson before the impact, had no idea which direction he had come or where he was going, and that the impact occurred when Anderson was three-quarters of the way across the left-hand travel lane, “about three feet” from the traffic island.  Rice further stated that, at the time of the accident, he was not looking in the direction the bus was traveling, but rather was looking to his right back up Staniford Street.  Rice’s original version of events, however, didn’t last long.

AIG’s files originally reflected that the company viewed the claim as indefensible, but the tenor of the claims, like Rice’s story, soon began to change.  The claims handlers began to discuss a possible defense based on an assumption–unsupported by any evidence–that Anderson had darted out from between parked cars, and had been struck in the middle of Staniford Street.  By the time the case was tried, Rice testified that he was looking down (not up) Staniford Street in the direction he was turning, that he had seen Anderson walking across the street shortly before the impact, and that he thought Anderson had come from between two parked cars.  A defense expert further testified that, because of the “geometry of the intersection,” it would have been impossible for the bus to turn tightly enough to strike Anderson close to the median strip–an assertion later proved by the plaintiffs to be patently false.  The jury returned a verdict assessing 53% liability against Partners and 47% against Anderson.

A prolonged appellate process followed, eventually resulting in an order affirming the judgment, which by this time had reached $3.2 million with the addition of post-judgment interest.  Anderson then brought bad faith claims against AIG pursuant to G.L. c.93A and  c.176D.  Discovery in that case revealed that AIG had been both aware of and involved in the evolution of Rice’s testimony.  Central to the case was a DVD of Rice’s deposition preparation sessions.

In an extensive opinion, Superior Court Judge Brian Davis held that AIG had engaged in unfair and deceptive acts in its handling of the Anderson claim.  Characterizing the defense as one based on “fictitious evidence and wishful thinking,” the judge noted that AIG had suppressed the original statements of Rice and another Partners shuttle driver who was following directly behind Rice’s bus, created an unsupported scenario that had Anderson “ran” or “rushed” into the street from “between parked cars,” and induced Rice to alter his testimony.  The judge further noted that AIG’s handling of the appeals was based on a decision to “grind down” the plaintiffs, rather than on any realistic likelihood that a second trial would yield a better result for the defense.

Judge Davis held that the AIG claims practices were “egregious,” and not mere oversight.  He awarded the maximum penalty of treble damages under Chapter 93A, then crediting AIG for the single damage award already paid.  Thus, the total damages to Anderson and his family will approach $10 million.

The Anderson decision, although certainly likely to be challenged on appeal, sends an important message to insurers and defense counsel about investigation and trial tactics that are probably more common than those outside the system realize.  While the facts certainly are egregious, and well-detailed in the lengthy opinion, the underlying principles  are worth noting for all defense lawyers and claims personnel.


Building Code Violations May Result in Strict Liability

The Supreme Judicial Court yesterday issued an important decision for victims who suffer personal injuries in public buildings, holding that building code violations that cause injury will automatically result in liability for the owner or controller of the property. The SJC’s decision in Sheehan v. Weaver (4/10/2014) overruled a 1999 case, McAllister v. Boston Housing Authority, 429 Mass. 300 (1999), which had limited the owner’s liability to violations relating to fire safety. The Court concluded that there was no statutory or logical basis for that restricted interpretation, which had been carried over from a previous version of the statute.

Sheehan arose out of an accident that occurred at a three-story, mixed-use building in Beverly, where the ground floor was occupied by a chiropractor’s office and the top two floors contained residential units. The plaintiff was injured when, en route to his third-floor apartment by way of an exterior staircase, he leaned against a railing which broke and sent him tumbling to the ground below. The evidence at trial established multiple building code violations involving the strength, height and condition of the railing, which the jury determined caused the plaintiff’s injuries.

In addition to ordinary negligence claims, the plaintiff also alleged that the building code violations imposed strict liability on the defendants under G.L. c.143 §51, the theory of statutory liability assuming great significance when the jury found the plaintiff 40% comparatively negligent—a reduction which presumably would not apply to the statutory claim. The defendants contended, based on McAllister, that because the violations did not involve fire safety, they were not liable under the statute.

After carefully analyzing the history of the statute and its various amendments, as well as the evolution of the decisional law, the SJC concluded that there was no basis to limit the application of c.143 §51 to fire safety violations. Thus, the Court ruled, ANY building code violation that causes injury will serve as a basis for imposition of strict liability on the owner.

Unfortunately, for the plaintiff, however, he won that battle but then lost the war. The Court went on to examine the precise language of the statute, and to hold that the statutory liability under §51 applies only to buildings in which large numbers of people could be expected to gather. This interpretation would have applied to the chiropractor’s office on the first floor of the building, but not to the landing from which the plaintiff fell, which served only the three apartments and was used only by the tenants and their guests. Even though the defendant landlord derived economic benefit from renting the residential units, that financial gain was insufficient to bring the property within the ambit of the statute, because of the mostly private use of the building.

Nevertheless, the decision has important consequences for owners and managers of commercial, educational, recreational or business properties which serve significant numbers of people. In those cases, the Court reasoned, members of the public would have little opportunity to inspect the property or become aware of code violations. Thus, it is reasonable to impose responsibility on the owner to maintain the property in compliance with the codes, and to be liable for injuries resulting from violations.

Read the SJC’s opinion in Sheehan v. Weaver here.
 


No Way Around Worker’s Compensation

The Supreme Judicial Court last week blocked a plaintiff’s attempt to circumvent the exclusivity provision of the Massachusetts workers’ compensation statute, General Laws c.152 s.24, holding that a corporate employer’s directors were entitled to the benefit of immunity from suit.  In Moulton v. Puopolo, the Court ordered the entry of summary judgment against the estate of a woman who was killed by a violent resident while working as a mental health counselor.

As most tort lawyers know, the workers’ compensation statute creates a trade-off for employees.  Unless the right to bring a tort suit is preserved at the time of hiring, the employee gives up the right to sue the employer if injured on the job, in exchange for the right to receive worker’s compensation payments without proving that the employer was at fault in causing the injury.  With the exception of a brief time when there was a loophole for consortium claims by family members, see, e.g., Ferriter. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980), this provision has consistently been applied to claims–including those for wrongful death–dependent on the employee’s injury.

The plaintiff in Moulton tried a novel way to avoid the workers’ compensation bar by suing the directors of the non-profit corporation that operated the residential treatment facility, claiming that they were negligent in failing to adopt policies that would have prevented the placement of the attacker at the facility, and thereby prevented the decedent’s death.  In an opinion, review of several basic principles of corporation law, the SJC held that the corporation can act only through its directors, and that, because they were acting as Moulton’s employer, they shared the corporate employer’s immunity under the statute.

The decision makes sense, both on legal and policy grounds.  In order to be responsible for Moulton’s working conditions and the residents she supervised, the directors would have to control her activities–the hallmark of an employer=employee relationship.  This allegation of control, while necessary to support the plaintiff’s theory of liability, was at the same time fatal to her claims.  And, as the Court noted, the exclusivity provision of G.L. c.152 has always been broadly interpreted, and this interpretation of director immunity is consistent with the purpose of the statute.  The fact that the corporation was a non-profit organization only served to make the public policy of protecting those in an employment relationship more compelling–although the Court noted that the same reasoning would likely apply to for-profit enterprises.

The plaintiff’s attorney in Moulton gets credit for creativity and a game effort.  Unfortunately, as with most recent efforts to attack the exclusivity provision, it was doomed to fail.

Read the SJC’s opinion in Moulton v. Puopolo here.


Ooops, They Did It Again?

In my last post, I expressed my growing concern that the recent proliferation of unpublished opinions issued by the Massachusetts Appeals Court pursuant to Rule 1:28 had the potential to mislead judges and lawyers because the necessarily abbreviated recitation of the facts might not clearly illustrate the applicability of the governing legal principles.  James v. Amlani, another decision issued the same day as the Bodden v. Nicholson opinion that prompted my last post, did nothing to allay those concerns.

The plaintiff in James brought a claim against his dentist, alleging that a foreign object he had swallowed during a dental procedure had caused a perforation in his intestine.  Unfortunately for the plaintiff, however, the size and description of the object eventually retrieved during surgery to repair his intestinal perforation did not match anything used during the dental treatment.  In fact, the description of the object sounded suspiciously like a toothpick that the plaintiff admitted to using while at home.

Clearly, this is a case that could quite simply and properly have been decided on the basis that there was no credible evidence that the foreign object in question was either used by the dentist or was ingested during the dental procedure.  Unfortunately, the court went much further, holding that the trial judge properly excluded an entry in the plaintiff’s later medical records that stated, “might have swallowed dental filling, and apparently, although not explicitly, reasoning that this statement had “bearing on the question of liability” and was not related to medical history or treatment.

The court clearly had ground to exclude the statement as speculative and unduly prejudicial under Section 403 of the Massachusetts Guide to Evidence.  But its unfortunately choice of grounds may serve to confuse future judges and lawyers.  A doctor treating a patient with an intestinal ailment would clearly be interested in whether the patient might have ingested a foreign object, and if so, what that object might be.  Was the object toxic, sharp, large or small?  Was the ingestion intentional?  And in answering these questions the challenged statement would clearly be relevant to diagnosis and treatment–yet the court’s opinion suggests otherwise.

More concerning is the court’s off-hand suggestion that the disputed entry was inadmissible as having “reference to the question of liability,” as provided by General Laws, Chapter 233, Section 79.  That exception, shared by both the hospital records statute, G.L. c.231 s.79, and the statute making a death certificate admissible as prima facie evidence of cause of death, G.L. c.46 s.19, has been the subject of much misguided advocacy by defense counsel, who seek to preclude the admission of anything even remotely helpful to the plaintiff by reference to that phrase.  In fact, as a review of the case law demonstrates, the thrust of that provision is to exclude an opinion related to legal, rather than factual liability.  Perhaps the best illustrative case is Wadsworth v. Boston Gas Co., 352 Nass. 86 (1967), in which the Supreme Judicial Court rejected the defendant’s argument that the words “illuminating gas” should be redacted from medical records and as the cause of death.  The Court stated, “[w]here the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability….   The recital of injury or death from inhalation of illuminating gas, standing alone, does not impute fault or freedom from fault to anyone. It may designate the chemical agent which produced the physical result, but it does not narrate the event or chain of events which caused the illuminating gas to escape. ”

The James court’s abbreviated discussion fails to acknowledge the distinction recognized in Wadsworth, and once again raises the potential that a decision originally intended to be brief and applicable only to the parties before the court may be used as support for a departure from established law.   The Appeals Court cannot be expected to write a full opinion in each case decided under Rule 1:28, and in truth, most of those cases do not warrant such attention.  But the combination of the summary treatment of the facts and the law, combined with the permission to cite the result, creates a real danger that these opinions will be used in a manner never intended by their authors.